Mass. House, Senate agree on compromise to change later-term abortion law; Baker likely to have final say

Reproductive rights activists rallied on the steps of the Massachusetts State House earlier this summer.Barry Chin/Globe Staff

One month after the Supreme Court overturned Roe v. Wade — and with less than a week left in the formal legislative session — Massachusetts lawmakers on Monday reached a compromise to expand access to abortion, shield providers from out-of-state prosecution, and make contraception more readily available.

A key point of tension that divided the Democratic-controlled House and Senate was the circumstances under which abortions at or after 24 weeks of pregnancy should be allowed. The compromise bill, expected to pass both branches and be sent to Governor Charlie Baker in coming days, allows for later-term abortions in the case of a “a lethal fetal anomaly or diagnosis . . . or grave fetal diagnosis that indicates that the fetus is incompatible with sustained life outside of the uterus without extraordinary medical interventions,” according to the bill’s language.

Under the current law, an abortion is allowed at or after 24 weeks because of a “lethal fetal anomaly” or if “the fetus is incompatible with sustained life outside the uterus,” but does not make any provision permitting the procedure for a baby that may only be able to survive with extreme interventions.

“The idea is that women should be at the center of this decision,” chief negotiator Senator Cindy F. Friedman told the Globe Monday. “What we learned is many women who face this very, very traumatic decision … to give a life that cannot live outside their womb unless there are extreme, out-of-the-ordinary medical intervention that would not make it better, it would simply keep them breathing. Nobody should have to go through that.”

The lawmakers’ proposal would continue to allow later-term abortions to preserve the patient’s life, physical, or mental health.

The agreement did not include language in the House-passed provision that would allow for later-term abortions in cases of “severe” fetal anomalies. The medical difference in the compromise bill, Friedman said, is that the word “severe” is associated with a definitive list of medical conditions.

The House’s language divided reproductive health providers and disability advocates like the Arc of Massachusetts, which said in a letter to lawmakers that the language “could perpetuate biases” about those diagnosed with conditions such as Down syndrome.

“Extraordinary medical intervention,” which was not used in either the House’s or Senate’s original proposals, means medical care that will not guarantee a positive outcome for a range of medical conditions, language lawmakers and advocates both say is more deferential to doctors and their patients who may be considering abortion.

Friedman gave examples of babies born with parts of their brain missing, who can technically stay alive for a short amount of time after birth, but would require “extraordinary medical intervention.”

Later-term abortions are relatively rare, making up about 1 percent of all abortions in the United States, according to the Kaiser Family Foundation.

Negotiations over the wide-ranging abortion rights bill began July 18 after both chambers swiftly passed legislation in the wake of the Supreme Court decision.

The final version of the bill, lawmakers said, includes language that would help shield providers from out-of-state prosecution for procedures that are legal here, such as abortions and gender-affirming care, and would make emergency contraception more readily accessible.

Among additional changes responding to last month’s ruling that allowed states to outright prohibit abortion for the first time in 49 years, the final bill makes emergency contraceptives such as Plan B available in vending machine and requires medication abortion availability at public colleges and universities, lawmakers said.

In anticipation that the Supreme Court would overturn the landmark Roe v. Wade decision that made abortions a constitutional right, the Massachusetts Legislature passed a law in December 2020 to protect and expand abortion access. What they dubbed the “Roe Act” codified abortion rights into state law and allowed for abortions after 24 weeks under certain conditions, including lethal fetal anomalies.

But for pregnancies facing grave outcomes that weren’t considered “lethal,” later-term abortions remained off the table.

That left out people like Kate Dineen who, at 33 weeks pregnant, learned that her son had suffered a catastrophic stroke in utero. Because the condition was not “lethal,” a later-term abortion was not an option, the Globe has reported, forcing Dineen and her husband to drive 500 miles from Boston to Maryland for the procedure.

Dineen told the Globe in a text message that the compromise language represents “important progress,” and urged Baker to sign the language into law.

Advocates say the bill is crucial in its role expanding access to abortion and ensuring that people like Dineen have the care they need at home.

Rebecca Hart Holder, executive director of Boston-based Reproductive Equity Now, told the Globe that her organization’s first priority is making sure no one has to leave to the state for such care.

“We have always been guided by what physicians tell us they need to practice,” she said. “We never want to see a woman like Kate Dineen sent out of the state for abortion care again.”

The compromise proposal is set for a Senate vote Tuesday or Wednesday, Senate President Karen E. Spilka told reporters.

After both chambers presumably pass the compromise — the House is expected to take it up Tuesday — it will be sent to Baker, a Republican.

He can then sign the bill, veto it, or send it back with changes, among other options. Baker said at the time he opposed the part of the 2020 abortion measure that would “expand the availability of later-term abortions.”

By leaving themselves so little time before the legislative session ends July 31, lawmakers have effectively given Baker the final say on the proposal.

Friedman and Spilka said Monday that they are not overly concerned about a gubernatorial veto, since the 2020 language was slightly different.

“I think the language is so good and so clear, I cannot imagine that somebody would find issue with it,” Friedman said. “I can’t imagine. But you never know. I am not the governor.”

Shirley Leung and Matt Stout of the Globe staff contributed to this report.