A nation divided — this time over access to abortion — will eventually mean it’s every state for itself.
And so in Massachusetts it falls to lawmakers not just to protect the rights of its citizens to all forms of reproductive health care — something the Legislature did in 2020 — but now also to protect the rights of health care providers from the increasingly Draconian laws of other states.
A provision in the Senate-passed state budget would throw a protective legal shield around all those who provide reproductive and gender-affirming health care services, including services to people coming here from out of state. As Massachusetts prepares for a possible post-Roe world in a nation where 26 states are poised to restrict access to abortion, those protections are essential for the state’s health care workers and for the patients they will be serving.
If the US Supreme Court follows the path outlined in a leaked draft opinion from Justice Samuel Alito that anticipates overturning the 50-year-old Roe v. Wade decision guaranteeing a woman’s right to terminate a pregnancy, then Massachusetts can and must remain an oasis of reproductive health sanity in a nation where that will be in increasingly short supply.
“We are now faced with a situation where another state, in state laws enacted by their legislature, is threatening the rights of law-abiding residents in our Commonwealth for engaging in activities legal under our laws, enacted by our duly elected Legislature here in Massachusetts,” Senator Cindy Friedman told her colleagues in introducing the budget amendment on the Senate floor. “This is an egregious and direct attack on a state’s ability to make their own laws and protect their own residents.”
Anticipating the pitched battle that reproductive rights have become, the Legislature wisely moved to codify the provisions of Roe in 2020. But the path chosen by states like Texas and Oklahoma puts Massachusetts health care providers at risk for simply doing their jobs. Those states essentially deputize private citizens to sue anyone who performs an abortion or “aids and abets” a procedure. Plaintiffs with no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win.
But beyond the potential for bounty hunting, if the Supreme Court overturns Roe, Massachusetts, with its wealth of medical providers, can anticipate a flood not just of patients crossing the state line but also of others seeking assistance via telehealth. In the midst of the pandemic, the FDA allowed expanded use of the abortion drug mifepristone via telehealth — a trend that opens the potential for cross-border use.
The Senate amendment will help assure that clinicians involved in reproductive or gender affirming health care services (some 15 states have either restricted such services or have legislation pending to do so) are shielded from certain legal actions, including challenges to their professional licensure, SLAPP suits designed to silence or harass them, out-of-state judgments, and extradition proceedings, assuming they were engaged in “legally protected health care activity.”
The proposed law would cover doctors, physician assistants, pharmacists, nurses, psychologists, and social workers. Courts would be barred from ordering anyone within Massachusetts to “give testimony or produce documents . . . in connection with litigation concerning ‘legally protected health care activity.’ ”
Massachusetts isn’t alone in fighting to protect its own citizens. Connecticut Governor Ned Lamontsigned a similar law last month. Washington state recently passed legislation prohibiting its agencies from imposing any penalties against people assisting pregnant individuals seeking an abortion or criminalizing any pregnancy outcomes. California and New Jersey also have similar bills pending.
Ordinarily, legislation that makes important policy changes would be best debated and passed separately from the state budget. But these are not ordinary times, and the time for legislative action this year is growing short — with formal sessions ending July 31.
Using the budget as a vehicle will, of course, require House budget negotiators to agree to the Senate amendment. And while there will be hundreds of items that will be subject to those negotiations, this one ought not to be subject to the usual inter-branch rivalries.
As the nation awaits final word from the Supreme Court, it is entirely likely that states will be entering some uncharted territory in the days ahead. Massachusetts has a solid record of protecting the reproductive rights of its citizens, of caring for all those in need of such services. Now it’s time to extend basic legal protections to those on the front lines of providing that care.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.