Politics

What would the end of Roe v. Wade mean for Massachusetts?

"Reproductive rights will remain here in Massachusetts."

By Christopher Gavin

May 3, 2022

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Abortion is legal in Massachusetts and will remain so even if the U.S. Supreme Court stands by a leaked draft majority opinion indicating the justices may overturn the court’s landmark ruling in Roe v. Wade.

On Monday night, Politico exclusively reported the opinion on Dobbs v. Jackson Women’s Health Organization after obtaining the draft penned by Justice Samuel Alito, who wrote the 1973 ruling on Roe “was egregiously wrong from the start.”

The draft also shows the majority of the court is behind overturning the 1992 decision in Planned Parenthood v. Casey, which largely upheld abortion rights.

Chief Justice John Roberts confirmed the authenticity of the document on Tuesday morning.

“We hold that Roe and Casey must be overruled,” Alito writes in the draft published by the news outlet. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Despite the leaked draft, abortion currently remains legal under federal law. The Supreme Court has not yet made any official ruling on the matter.

In Massachusetts, state lawmakers have already taken steps to enshrine reproductive rights. In 2020, the Legislature codified the right to abortion access into state law.

“That is a very, very strong statement that reproductive rights will remain here in Massachusetts,” Democratic Senate President Karen Spilka told reporters outside the State House on Tuesday. “It will be a woman’s right to choose.”

Even before 2020, the state Supreme Judicial Court determined abortion is protected under the Massachusetts constitution.

And in 2018, state lawmakers passed a law to remove an outdated and unenforced law dating back to 1845 that prohibited abortion. Officials also stripped archaic regulations banning unmarried women from using contraception and measures that criminalized adultery and fornication.

But, fearing that abortion rights were under threat at the federal level, state lawmakers in late 2020 rallied to pass the ROE Act, spelling out those rights in state law and expanding access beyond the restrictions in place until that time.

Under the law, the state cannot interfere with a “person’s personal decision” to undergo the medical procedure and abortions are allowed within the first 24 weeks of pregnancy.

After that period, an abortion can only be performed if a physician determines the mother’s life or physical or mental health is at risk, or if there is “a lethal fetal anomaly or the fetus is incompatible with sustained life outside the uterus.”

The law also provides for minors who are 16 and 17 years old to undergo abortions without consent from a parent, guardian, or judge. Before the ROE Act, Massachusetts law set the age of consent at 18.

The state Senate overruled a veto from Republican Gov. Charlie Baker to pass the law in December 2020 — a point Spilka underscored on Tuesday.

Baker, at the time, told lawmakers he “strongly support(s) a woman’s right to access reproductive health care” and many of the provisions in the bill. But he said he objected to removing consent requirements for teen abortions and the expansion of “the availability of later-term abortions.”

In light on the leaked draft opinion, Baker, in Twitter posts on Tuesday, affirmed his support of a woman’s right to choose.

“If SCOTUS overturns Roe, it would be a massive setback for women in states without responsible laws protecting abortion access and reproductive health services,” Baker wrote on Tuesday. “I am proud to support every woman’s right to choose and I am proud that MA has and will always protect every woman’s right to choose what is best for them.”

Later on Tuesday, state House Speaker Ron Mariano touted that House lawmakers have advanced a nearly $50 billion budget proposal that includes $500,000 to expand abortion access.

“We’re ahead of every other state,” Mariano said when he was asked if there is more Massachusetts will be doing to help lead the country in abortion access, as leaders vowed they would.

But they also said there remains much to do.

Spilka said officials will be meeting with advocates and experts to see how state law can better support women and families and “possibly other states that might need assistance.”

Lawmakers in Connecticut last week passed a law to protect in-state abortion providers from out-of-state lawsuits given the nation’s varied legal landscape on the issue.

Could Massachusetts follow suit?

“I would like to look at everything and see what’s out there … we will have discussions as to what we could do in response to this action, because I believe, we keep saying it’s a only draft (opinion), but, it’s a matter of time before it becomes a real opinion,” Spilka said. “And I think we need to vocalize … it’s up to the states to take action right now.”