Metro

The pre-Roe abortion ban in Mass. is still on the books. Here’s why that matters

The state Senate in January unanimously passed a bill dubbed the NASTY Women Act that would scrap a 19th-century Massachusetts ban on abortions.
CJ GUNTHER/EPA/Shutterstock/File 2018
The state Senate in January unanimously passed a bill dubbed the NASTY Women Act that would scrap a 19th-century Massachusetts ban on abortions.

Even if a more conservative Supreme Court reverses Roe v. Wade in the wake of Justice Anthony Kennedy’s retirement, abortion will likely remain legal in Massachusetts, despite the fact that the deep-blue state is one of 10 with pre-Roe abortion bans still on the books.

Here’s the breakdown:

The state Senate in January unanimously passed a bill dubbed the NASTY Women Act that would scrap a 19th-century Massachusetts ban on abortions, which lawmakers never formally repealed after the 1973 Roe decision made the ban unenforceable.

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The bill’s name refers to President Trump’s infamous labeling of Hillary Clinton as a “nasty woman” during the 2016 campaign and stands for Negating Archaic Statutes Targeting Young Women. It’s currently pending in the House.

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But even if final passage fails, a 1981 ruling from the Massachusetts Supreme Judicial Court would still preserve a woman’s right to an abortion, advocates on both sides of the debate said Thursday.

The SJC opinion in the case in question, Moe vs. Secretary of Administration and Finance, noted that the high court in Roe determined “a woman’s decision whether or not to terminate a pregnancy by abortion falls within a constitutionally protected zone of privacy.”

The Roe ruling held the right of individual choice during the first trimester of pregnancy to be “paramount,” the SJC opinion said. “[Ac]cordingly, the State may not restrict abortions during this period beyond requiring that they be performed by a licensed physician. . . . Only at the point of fetal viability, beginning at approximately the seventh month of pregnancy, does the State’s interest in potential life become sufficiently compelling to support an outright prohibition of abortion except as necessary to save the life or health of the pregnant woman.”

Despite the SJC protections, passing the NASTY Women Act, which would also scrap archaic laws such as prohibitions on unmarried women using contraception and the criminalization of contraception distribution, is “crucial” in the current political climate, according to the office of Senate President Harriette L. Chandler, lead sponsor of the bill.

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“The Massachusetts Supreme Judicial Court has its own precedent for a right to reproductive freedom that comes from the 1981 case Moe v. Secretary of Administration and Finance,” a Chandler spokesperson said in an e-mail Thursday. “However, it remains crucial that we sign the NASTY Women Act into law to ensure that all draconian, anti-reproductive rights statutes are repealed.”

The nine other states with pre-Roe abortion bans are Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia, and Wisconsin, according to the Guttmacher Institute, a research organization that backs abortion rights.

Seven of the 10 states allow for exceptions in cases where abortion is necessary to save a woman’s life, the institute says.

Elizabeth Nash, senior state issues manager at the institute, said in an e-mail that the question of states’ actions in the event of a Roe reversal is “very complicated.”

“It is quite dependent on the political makeup of the state legislatures at the time Roe is overturned,” Nash wrote. “And I think there is a bit of a political question too, even in very conservative states. That said, if Roe were to be overturned soon, I think we could expect attempts to ban abortion in a large number of states, primarily states where we already see restrictions and abortion access is limited, such as the South and the Midwest. I would also expect in a smaller set of states that the legislatures would move to protect abortion rights and access, and those states are primarily along the West Coast and the Northeast.”

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Nash added that “in some states the holdings in Roe v. Wade are not the reality on the ground. There is very limited access to abortion and restrictions make it difficult for patients to get access and to keep facility doors open. So around the country abortion access is already dependent on where you live. But if Roe were to be undercut or overturned that disparity in access will only increase.”

But in Massachusetts, long considered a liberal bastion, the 1981 SJC ruling has rendered the pre-Roe abortion ban and debate over the NASTY Women Act moot, according to David Franks, board chairman of Massachusetts Citizens for Life, a group that opposes abortion rights.

“The NASTY Woman Act is something of a sideshow” in light of the SJC ruling, Franks said.

He said that rather than fight the bill, his group is focused on working with “legislative partners to enforce basic health code standards at abortion facilities” and “age of consent protections,” among other priorities.

“We’re going to continue conducting our educational activities to make the case to the people of the Commonwealth that we believe the [state] Constitution of John Adams is suffused with the same principles as the Declaration of Independence, that every human life has real dignity,” Franks said. “Even the Republican Party in this state isn’t pro-life, so we have a lot of work in front of us.”

Franks’s assessment of the state GOP was reinforced Thursday by the office of Governor Charlie Baker, a popular pro-choice Republican in a blue state.

“Governor Baker supports full access to women’s health care and family planning services, and while the Massachusetts Constitution provides greater protection for a woman’s right to choose than what exists at the federal level, the Baker-Polito Administration opposes any measures to erode these protections here in the Commonwealth,” said Lizzy Guyton, a spokeswoman for Baker, in a statement.

Despite legal protections from the SJC and the prochoice leanings of the state’s top elected officials, abortion rights advocates in Massachusetts remain concerned at a time when Trump could potentially stack the Supreme Court in favor of dismantling Roe v. Wade.

“The existence of the [archaic] unconstitutional abortion ban and other restrictions on reproductive health care runs contrary to Massachusetts’ strong record of protecting women’s health and rights,” said Dr. Jennifer Childs-Roshak, president and CEO of the Planned Parenthood League of Massachusetts, in a statement. “These laws were passed at times in history when women were second class citizens, when women had little to no economic freedom, and when their husbands or the state governed their decisions, including decisions about their own bodies.”

She said that “[a]nti-abortion politicians across the country are preparing for their chance to make abortion access illegal. Massachusetts has a responsibility to wipe its antiquated laws off the books and make clear the right to safe, legal abortion is protected in our state.”

Andrew Beckwith, president of the Massachusetts Family Institute, a conservative advocacy group that opposes abortion rights, asserted that the “overwhelming majority of Americans favor at least some restrictions on abortion, and we’re hopeful that the Supreme Court will soon reflect that broad consensus.”

He said Massachusetts “has the lowest fertility rate in the nation and an average of 20,000 abortions per year. That should be of great concern to everyone who cares about the most vulnerable among us or the future of our Commonwealth as a whole.”

Stephanie Ebbert, Felice Belman, Saurabh Datar, and Brian White of the Globe Staff contributed to this report.