Mass. House, Senate at odds over later-term abortion law

An abortion rights rally at the Massachusetts State House earlier this year.Erin Clark/Globe Staff

The Massachusetts Senate on Wednesday followed the House in passing a wide-ranging abortion rights bill in the wake of the Supreme Court overturning the landmark Roe v. Wade decision.

But Democratic leaders must now wrestle with thorny differences, particularly in what circumstances to allow later-term abortions, a disagreement that could complicate the late-session scramble to expand the state’s already extensive reproductive rights law.

Both chambers have now embraced language that would help shield providers from out-of-state prosecution for procedures that are legal here and would make emergency contraception more readily accessible, among other changes responding to last month’s ruling that allowed states to outright prohibit abortion for the first time in 49 years.

The conflict between the chambers hinges on whether to reshape a relatively new part of state abortion law. Currently, Massachusetts permits the procedure after 24 weeks of pregnancy only when a doctor deems it necessary to protect the patient’s life, physical health, mental health, or in cases of a “lethal” fetal anomaly.

The House — which passed its version of the bill, 136-17, with some Republican support — would expand the exemption to include “severe” fetal anomalies, and require the Department of Public Health to create regulations on when exactly abortions could be performed after 24 weeks.

That proposed change has split reproductive health providers and disability advocates, who say it “could perpetuate biases” about those diagnosed with conditions such as Down syndrome. It has also raised fears of a veto from Governor Charlie Baker at a time when the Legislature could have little recourse to respond.

That the wording around abortions after 24 weeks, which are relatively rare, has become a focal point in the debate highlights both how far-reaching Massachusetts law already is in protecting abortion rights, and the urgency lawmakers feel to further expand protections as abortion is outlawed in other parts of the country.

Baker supports abortion rights and has sought to protect providers through an executive order. But the second-term Republican also vetoed the fatal fetal anomalies measure as part of 2020 legislation known as the ROE Act, a veto which lawmakers ultimately overrode.

With less than three weeks left in their legislative session, Senate leaders said the House provision allowing for later-term abortions in cases of “severe” fetal anomalies could meet a similar fate and, they argue, it may not be necessary. Before passing the bill, 40-0, on Wednesday, the chamber did not include the House later-term abortion language but instead adopted an amendment filed by Senator Patricia Jehlen that attempts to clarify the existing law, which also allows for an abortion after 24 weeks if the physician determines the “fetus is incompatible with sustained life outside the uterus.”

That requirement, as well as others, must be considered “independently by a treating physician and a patient,” according to the Senate language. It also would require hospitals and providers to submit a report to the Department of Public Health explaining their “procedures and processes for providing [abortion] services.”

“We believe our language clarifies, rather than confuses,” Senate President Karen E. Spilka said.

In pushing their version, House leaders have cited the case of Kate Dineen. As the Globe reported, she was 33 weeks pregnant when she learned her unborn son had suffered a catastrophic stroke and faced a 50 percent chance of dying before birth or, if he survived, years of suffering.

But Massachusetts General Hospital doctors told her they could not abort the pregnancy if there was a chance the fetus could live outside the womb. Dineen ultimately drove to Maryland, where she and her husband paid about $10,000 out of pocket for the procedure.

In an unusual lobbying effort, Representative Kate Hogan, the House’s second-ranking Democrat, wrote this week to Spilka, urging that the chamber adopt the House provision.

“We have an opportunity to eliminate this uncertainty by clarifying guidance, an action that is now more important than ever,” Hogan wrote, “as options for out of state care are becoming increasingly limited.”

Senator Cindy F. Friedman, an Arlington Democrat, said Senate leaders looked “very, very carefully” at Dineen’s case. The problem, she said, was with “providers not actually following the law that we passed.”

The chambers will now have to reconcile differences between the two versions of the legislation.

Later-term abortions remain relatively rare, according to federal data from most states. The Centers for Disease Control reported roughly 4,900 abortions were performed at or after 21 weeks of gestation in 2019, representing 1 percent of all procedures.

Lawmakers are scheduled to complete formal sessions on July 31, meaning that should legislative leaders reach an agreement on the abortion legislation — and pass it with a veto-proof majority — they still must account for the 10 days Baker is allowed to act on a bill once it reaches his desk. And should he receive the bill with fewer than 10 days left in session and issue a veto after lawmakers formally break, Democrats would effectively have little recourse to overturn it.

A Baker spokesman did not address a question about the governor’s stance on the House’s later-term abortion provision, saying only that Baker would review any legislation that reaches his desk.

Lawmakers have faced competing pressures in the debate. The Arc of Massachusetts, which advocates for people with intellectual disabilities, said it opposed the House language and urged lawmakers to reject it.

The language “could perpetuate biases and send a message that the lives of individuals with Down syndrome or disabilities categorized as ‘severe’ are of lesser value,” Leo Sarkissian, the group’s executive director, wrote in a letter last month to legislators.

The Massachusetts Catholic Conference, speaking for the state’s four Catholic bishops, also railed against it, saying the House’s “undefined terminology further erodes the protection of life.”

Some providers, however, believe the House language is necessary. Rebecca Hart Holder, executive director of Reproductive Equity Now, called the Senate language an important clarification of the law. She said the group has also been “listening to the providers who are saying, we need the word ‘severe’ in the statute.”

The chambers appear in agreement on several other parts of the bill. The legislation calls for health insurers to provide abortion coverage without copayments or any form of cost-sharing. It would make emergency contraception more readily accessible by giving licensed pharmacists a standing order to dispense it on request. And it would create provisions that shield physicians, physician assistants, nurses, psychologists, and social workers from repercussions for providing legal abortion or gender-affirming care.

Stephanie Ebbert of the Globe staff contributed to this report.