Massachusetts’ leading women’s health advocates are urging the legislature to repeal laws still on the books that might compromise or complicate abortion access should a U.S. Supreme Court appointee by Donald Trump succeed in overturning Roe vs. Wade, the decision which ensures reproductive freedom.
Should a Trump-tinged Supreme Court negate the national abortion rights guarantee, regulation would revert to the state.
In 1981, the Supreme Judicial Court ruled that access to abortion is a right accorded by the Massachusetts Constitution. The case, Moe vs. The Secretary of Administration and Finance, found a constitutional right for indigent women to receive abortion services paid for by the state through MediCaid. That right is based on the Declaration of Rights and found in Article 10 of the state constitution.
Advocates, nonetheless, worry that the current laws are sufficiently muddled that court challenges could potentially crop up and hamper access.
"They are on the books and now more than ever given the national political environment, Massachusetts has a responsibility to be a leader in protecting access to health care and promoting women's rights And to really make that commitment clear, and that leadership evident, they can demonstrate that commitment by wiping these laws off the books," Planned Parenthood's Tricia Wajda told WGBH News. Planned Parenthood, a leading women's health advocacy organization and abortion provider, wants lawmakers to remove the archaic laws to show their commitment to reproductive rights.
The Moe decision became the state Standard. The Legislature, however, never removed archaic and unenforced abortion bans that have been on the books for years.
Three laws, dating from as far back as 1845, that abortion access advocates are targeting for removal (Ch. 272 Section 19, 20 and 21) promise jail time to anyone who acts "with intent to procure the miscarriage of a woman" by medicinal means or otherwise.
Another law bans advertising any drug, tool or service used to cause miscarriage, as well as even to prevent pregnancy, in the Commonwealth. The following law allows doctors and pharmacists to provide contraceptives, but only to married couples. The law, from the mid-20th Century, goes out of it's way to ban contraceptives in vending machines.
Current enforced law protects abortion, and allows physicians to perform safe abortion procedures prior to 24 weeks if deemed necessary "under all attendant circumstances." After 24 weeks, a doctor may determine an abortion is necessary to save the life of the mother or prevent "grave impairment."
For nearly 44 years, the U.S Supreme Court's decision in Roe. Vs. Wade has protected access to abortion services for women, but a Trump-tinged Supreme Court could overturn that decision and leave the right to an abortion up to each state.
So what would happen in Massachusetts? The state's top court has ruled that access to abortion is a right according to the state constitution, but there is worry that the current laws are muddled enough that court challenges could crop up and hamper access.
Abortion foes agree that the law in Massachusetts as it stands wouldn't be affected by Roe being overturned, if it were to be, but they are looking forward to the public scrutiny and debate having the issue in the news may bring.
"If they were to try to get them off the books that would only help our side because there'd be some publicity and some talk about abortion," Attorney Tom Harvey, founder of the Massachusetts Alliance to Stop the Public Funding of Abortion, told WGBH News.
Harvey has fought for years to change the state's constitution to prevent tax dollars going being used on abortion services for the poor, but he admits that "whatever the federal government decision would be, I don't think anything would change here in Mass."
"Those laws sound great from our perspective,from the pro-life perspective, but they've all kind of gone by the wayside because of the court's decisions," Harvey said, adding that he doesn't see much chance of ending abortion in Massachusetts.
Wajda said Planned Parenthood is confident that "if Roe were to be overturned, that the right to safe and legal abortion would remain intact here in Massachusetts" because the Supreme Judicial Court has ruled that abortion rights are covered in the state constitution and other state statutes that overrule the restrictive laws.
"We're behind efforts to repeal these arcane laws just because why bother keeping them on our books at all?" Wajda said.
"These laws were passed in 1845 and 1966 and '74," Wajda said. "They were passed at a time in history when women were pretty much second class citizens. Women had little to no economic freedom, when their husbands or the state for that matter governed their decisions including decisions about their own bodies."
While Planned Parenthood and other groups worry how the Supreme Court will operate under Trump, they see a more immediate threat coming from across D.C.'s First Street, where Congress is already dismantling the Affordable Care Act. Health insurance benefits covering women's health, including birth control available
without a co-pay, could be removed, affecting millions of women, if the ACA is repealed and not replaced with similar coverage.
"Where we're putting our real energy is where we see the greater urgency right now and that's around this idea this idea of over the possibility that the Affordable Care Act could be repealed," Wajda said.