Anti-abortion laws are still on the books in Massachusetts. They include a law outlawing advertisements for any drug, tool or service used to cause a miscarriage. Beacon Hill lawmakers are moving to repeal some of these archaic laws that have been in place for more than a century. Roe v. Wade is the U.S. Supreme Court ruling that legalized abortion in 1973. If that ruling is reversed, abortion regulations would then fall to individual states. That reversal is on the minds of many, with the nomination of Brett Kavanaugh to the Supreme Court. WGBH News Legal Analyst and Northeastern University Law Professor Daniel Medwed spoke with WGBH's All Things Considered anchor Barbara Howard about the state's old abortion laws. This transcript has been edited for clarity.
Barbara Howard: So if Roe v. Wade were reversed today, what does that mean for the state of Massachusetts?
Daniel Medwed: Massachusetts has its own Supreme Judicial Court decision. It's called Moe, coincidentally — not Roe — from 1981, that finds that there is a right to an abortion under state constitutional law. So even if the Supreme Court in theory were to reverse Roe v. Wade and find that there is no federal constitutional right to abortion, there would still be the SJC decision allowing abortion in the Commonwealth.
Howard: Give me some examples of those archaic laws that they're trying to remove.
Medwed: So there is that SJC decision on the one hand, but there are a number of archaic laws that for whatever reason, even though they were superseded by that SJC decision, remain on the books. You mentioned one of them — a law that bans advertising about drugs, services, or tools that could promote abortion. There’s also a law from 1845 that criminalizes abortion. And there even are some provisions that say that doctors have a right to give contraceptives only to married couples. Now those laws, for good reasons, haven't been enforced in decades. But there is a fear out there among pro-choice advocates that if Roe v. Wade were repealed, and if the SJC were not to be so vigilant in upholding the Moe decision, then maybe these state laws could be enforced. And for that reason there's a movement afoot to repeal them.
Howard: The laws though right now, the antiquated ones — they're not enforceable given the Moe decision?
Medwed: That's right. They aren't enforceable. They haven't been utilized in decades. What would be interesting, I imagine, is if for whatever reason law enforcement authorities decided to try to use them in the wake of a reversal of Roe v. Wade, what would happen? What would the SJC do?
Howard: Is repealing these Massachusetts laws anything more than symbolic? It doesn't seem likely the state's going to suddenly start enforcing these laws if Roe v. Wade is overturned.
Medwed: On the one hand, it would be largely symbolic. These are anachronisms. But on the other hand, their mere presence provides ammunition for anti-abortion activists to draw on them, to try to litigate them. So repealing them might be the prudent way of excising the code of all vestiges of those outdated laws.
Howard: Should Roe v. Wade be overturned, is there more concern in other states outside of Massachusetts about this?
Medwed: Absolutely. In other states that lack the robust progressive inclinations of Massachusetts, there's a strong risk not only that legislatures could pass laws that would criminalize and ban abortions, but that the local state supreme judicial courts or the equivalent might validate those laws. So I think in many states, there is a very, very serious concern about pro-choice surviving if, in fact, Roe v. Wade is overturned.
Howard: OK. Thanks for joining us, Daniel.
Medwed: My pleasure, Barbara.
Howard: That's WGBH News legal analyst and Northeastern University Law Professor Daniel Medwed, discussing archaic and in fact unenforceable state laws still on the books in Massachusetts that outlaw abortion. Legislators are looking to repeal the statutes amid concern about the future of Roe v. Wade. This is All Things Considered.
