Abortion-rights advocates and Massachusetts legislative leaders are moving to repeal a 19th-century state law that criminalizes abortion, acting out of concern that the US Supreme Court may overturn its Roe v. Wade ruling.
“The threat is there,” said Senate President Harriette L. Chandler, who led a successful charge to pass the legislation in her chamber. “More than ever, the NASTY Women Act needs to be put into law here in Massachusetts so women will feel a measure of safety.”
The bill, formally an act Negating Archaic Statutes Targeting Young Women, would eliminate the state’s unenforced abortion ban, along with other old laws on contraception that have since been invalidated by Supreme Court decisions. Abortion-rights advocates said they are pressing harder for the change because they believe President Trump will replace retiring Justice Anthony Kennedy with a jurist who will tip the court’s balance against constitutional protections for abortion.
If that occurs, the legality of abortion could be up to the states. It’s a change, according to NARAL Pro-Choice Massachusetts executive director Rebecca Hart Holder, that could activate the long-dormant Massachusetts law.
“We think it’s a real issue. We fear some prosecutor might see it or use it. And then we’ve got this period where a woman or a doctor could go to jail,” she said. “We want to remove any ambiguity and latent danger from the Massachusetts General Laws to ensure that women have unfettered access to abortion care when and if they need it.”
While a 1981 state high court decision strongly suggests the Massachusetts Constitution protects abortion rights, Holder said, it does not say so explicitly, and “we don’t want to enter some liminal period where there’s even a question about access to abortion.”
But David Franks, board chairman of Massachusetts Citizens for Life, called the bill “political theater” because of the state court decision and said that if Roe is overturned, his group looks forward to making the case to residents and legislators “for the equal dignity of each human life.”
And C. J. Doyle of the Catholic Action League of Massachusetts said the “proposal is more about agitprop, fund-raising, and posturing than lawmaking.”
The bill repealing the old laws — whose name recalls Trump’s infamous crack about Hillary Clinton — passed the Senate in January by a 38-0 vote, with support from Democrats and Republicans, and has been pending in the more conservative House of Representatives, which is also controlled by Democrats.
The Legislature’s formal session ends July 31, so any further action on the bill would have to come quickly.
Asked whether House Speaker Robert A. DeLeo supports the legislation, the Winthrop Democrat’s spokeswoman, Whitney Ferguson, replied in a statement: “Speaker DeLeo shares concerns about the changing dynamic of the Supreme Court, particularly with respect to a women’s right to chose. He will be meeting with NARAL in the near future as the House continues to review” the legislation.
Some Beacon Hill insiders believe a vote in the House could be tough for some Democratic representatives — those from heavily Catholic and conservative-leaning districts, for instance.
But House majority leader Ronald Mariano, a Quincy Democrat, said that if the House ends up taking up the Senate legislation, “I don’t think it’s going to be as tough [a vote] as some other topics, such as immigration.”
Trump “is doing a lot of crazy things, and it creates a whole lot of uncertainty for folks,” and they want to push back against it, he said.
Governor Charlie Baker did not take a specific stance on the bill, as is his practice with most legislation before it reaches his desk. But the Republican reiterated his longstanding support for abortion rights through a spokeswoman.
“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 spokeswoman Lizzy Guyton.
The bill is premised on preventing a future that may never come to pass, which has left some legislators scratching their heads.
“It’s such a crazy thought that we are talking about this now!” said Representative Elizabeth Poirier, a member of House Republican leadership who opposes abortion rights. “I mean how far in the distant future is this proposal dealing with? Five years? Ten years? Why are we in such a rush to do this?”
Kennedy’s retirement announcement is, indeed, a long way from police in Massachusetts arresting doctors who provide abortions.
For that to happen, the justice’s successor, to be confirmed by the Senate, would presumably have to support rolling back the protections for abortion that have existed since 1973, an abortion case would need to work its way up to the high court, and a majority of the justices would have to back unwinding Roe— a series of events that some legal experts see as far-fetched in the near term.
Even then, there is debate about whether the Massachusetts law criminalizing abortion would become operative.
The 1981 Supreme Judicial Court decision, Moe v. Secretary of Administration and Finance, said the state could not use its funding power to prevent women on Medicaid from accessing lawful, medically necessary abortion services.
The ruling also effectively but not explicitly said the Massachusetts Constitution protects a woman’s right to get an abortion: “We think our Declaration of Rights affords a greater degree of protection to the right asserted here than does the Federal Constitution,” the court opined.
But ambiguity is reason enough for repealing the old laws, some legal experts said.
“Is there a need to take these off the books? Yes. Is there less of a need because of Moe? Quite probably,” said John Reinstein, a civil rights attorney who was one of the lawyers representing the plaintiffs in that 1981 case.
Repealing the old antiabortion law is “important practically and symbolically,” he added.
Abortion restrictions have existed in Massachusetts statute for at least 173 years, making the state one among 10 that have unenforced, pre-Roe v. Wade abortion bans on the books, according to the pro-abortion-rights Guttmacher Institute.
Joshua Miller can be reached at firstname.lastname@example.org.