A Mississippi case before the US Supreme Court gives conservative justices the chance to significantly limit the constitutional right to abortion. But those rights are not at risk in Massachusetts, where a new abortion law was passed last year in anticipation of just such a legal challenge.
With three Donald Trump appointees solidifying a new conservative majority on the high court, red and blue states alike have been gearing up — with glee or trepidation — for the day when the court might reconsider the constitutional right to abortion.
That day came last year when the high court announced it would hear Dobbs v. Jackson Women’s Health, which centers on a Mississippi law that would ban most abortions after 15 weeks of pregnancy — a far more restrictive time frame than current law. Under Roe v. Wade and subsequent court decisions, states may not ban abortions before fetal viability, around 24 weeks.
On Monday, Politico reported that it obtained a draft opinion suggesting the Supreme Court may be poised to overturn Roe v. Wade, a move that could lead to abortion bans in roughly half of US states and could have significant ramifications for this year’s elections.
In Massachusetts, preparations for such a case took the form of the ROE Act, which passed into law at the end of 2020 over Republican Governor Charlie Baker’s veto. It codified and expanded the right to abortion in Massachusetts.
After Justices Neil Gorsuch and Brett Kavanaugh were seated on the high court, Democratic lawmakers and abortion rights advocates in Massachusetts began pushing to set out and strengthen abortion rights in state law, anticipating that the high court might soon limit those rights nationally.
“This [case] is exactly what we were afraid of. It was never a question of whether it would happen, it was only a question of when it would happen and who would file the case,” state Senator Harriette Chandler, a Worcester Democrat who authored a version of the ROE Act, told the Globe last year.
That’s why it was so important to pass the law quickly, Chandler said.
Now, with it in place, “Abortion will remain legal, safe, and accessible in Massachusetts regardless of what happens in the Supreme Court next term,” said Jessie Rossman, a staff attorney with the American Civil Liberties Union of Massachusetts.
Under Massachusetts law, abortion is legal through 24 weeks of pregnancy, as well as after that threshold, in cases with a fatal fetal anomaly or to preserve the health of the pregnant person. The new ROE Act also allowed 16- and 17-year-olds to seek abortions without parental consent.
“The composition of courts change over time, and we didn’t want to take any risks,” said Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts.
Polling in 2020 by Suffolk University and The Boston Globe found that a majority of Massachusetts residents support allowing late abortions for ill-fated pregnancies. But just 48 percent supported lowering the age at which a teenager can get an abortion without consent from a parent or judge. Baker took issue last year with lowering that age limit, though he supported much of the rest of the bill.
Antiabortion groups in Massachusetts praised the high court for taking the Mississippi case.
Bill Gillmeister, executive director of the conservative Renew Massachusetts Coalition, said he supports the Mississippi law.
“It is a person and deserves protection,” he said of a fetus at 15 weeks of pregnancy.
“Massachusetts Citizens for Life commends the court for its decision to review Mississippi’s law and acknowledges the many American lives to be saved, if the court rules in the state’s favor,” said the group’s president, Myrna Maloney Flynn.
The Supreme Court will hear the Mississippi case in its next term, with a decision expected in the spring or summer of 2022. Abortion is protected under state law in most of New England, but in large swaths of the South and the Midwest, it could quickly become illegal or inaccessible in the wake of a major court decision.
If the court rolls back the right to abortion, people could be forced to travel hundreds of miles to places such as Massachusetts to terminate pregnancies.
As Democratic states have shored up abortion rights in anticipation of such a case, a number of Republican legislatures pushed so-called trigger laws that would make most or all abortions illegal immediately upon a Supreme Court decision overturning Roe v. Wade.
In Texas, the Republican governor recently signed into law a ban on abortions after just six weeks of pregnancy, a move that is sure to generate legal challenges.
Motivating those strategies is the indication that the high court, once supportive of Roe, has shifted significantly to the right on one of the country’s most divisive issues — and the assumption that it will overturn its own precedents on abortion and privacy.
Perhaps the best indication of that ideological shift is the court’s decision to consider the Mississippi law at all.
Lower courts have said Mississippi’s law is unconstitutional because it runs afoul of the protections enshrined in Roe. Legal experts and advocates anticipate the Supreme Court may say the opposite, upholding Mississippi’s ban and undermining abortion rights.
“It’s really hard to see why the court would take the case unless they are looking at either overturning or radically changing Roe’s core holding,” Hart Holder said.
As recently as last year, the Supreme Court struck down a highly restrictive Louisiana abortion law. But the court’s ideology has shifted since then, with Justice Amy Coney Barrett, who once signed a statement opposing “abortion on demand,” replacing Ruth Bader Ginsburg after her death from cancer complications last September.
For Massachusetts Democrats, Ginsburg’s death lent the bill a new sense of urgency.
“That sort of gave us all a jolt of reality,” Chandler said. “We expected to be saved by Ruth Bader Ginsburg. Then she died, and sort of our worst nightmares about who would be named in her place came true.”
The bill, which had been considered but not yet voted on, began to move more quickly, she recalled. Chandler wasn’t sure whether the Massachusetts House, which is typically more conservative than the Massachusetts Senate, would pass it.
But with the support of then-House Speaker Robert DeLeo and Senate President Karen Spilka, it became law in December, with lawmakers overriding Baker’s veto.
It came as a relief to many who eye the national landscape with growing anxiety.
Dr. Jennifer Childs-Roshak, CEO and president of Planned Parenthood Advocacy Fund of Massachusetts, summed it up succinctly.
“It’s good to be in Massachusetts,” she said.