A possible scenario in which a Supreme Court, influenced by President Donald Trump's pick to replace retiring justice Anthony Kennedy, rolls back access to abortion has local advocates asking Massachusetts lawmakers why the state still maintains laws from the 19th century banning it.
Court decisions and a generation of pro-choice lawmaking have cemented women's health as a core part of Beacon Hill's values, so overturning Roe v. Wade wouldn't change much in Massachusetts. But advocates still want to remove archaic laws dating back to 1845 that muddy the waters on what's allowed here.
"It is more pressing than ever before because of Justice Kennedy’s retirement, and I think taking the laws off the books is both practical in protecting abortion care but also symbolic in that it sends a message that the Commonwealth believes that women have the right to choose," Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts said.
The outmoded laws, still on the books but hardly enforceable,threaten to imprison anyone "with intent to procure the miscarriage of a woman" medically or otherwise. Additional laws never taken off the books, ban advertisements for any drug, service or tool to cause a miscarriage or even prevent pregnancy.
A bill to remove those old laws — with the resistance-tinged title of the NASTY Women Act — passed the Senate but has been stalled in the House for months.
“It remains crucial that we sign the NASTY Women Act into law to ensure that all draconian, anti-reproductive rights statutes are repealed. The Senate passed the legislation unanimously in January," Senate President Harriette Chandler told WGBH in a statement.
House Speaker Robert DeLeo said this week he's reviewing the bill in light of the change on the Supreme Court.
“Speaker DeLeo shares concerns about the changing dynamic of the Supreme Court, particularly with respect to a women’s right to choose," DeLeo spokeswoman Whitney Ferguson told WGBH News, adding that DeLeo will meet with NARAL to discuss the legislation.
Holder is hopeful DeLeo will allow a floor vote by the time formal sessions come to an end in August.
“Their mere existence really runs counter to all that we’ve done, and now that we have, you know, anti-abortion politicians across the country preparing for their chance to make abortion access illegal, Massachusetts has the responsibility to stand up and wipe these laws off the books and make our principles clear," Johanna Kaiser from Planned Parenthood told WGBH News.
Holder said it's unlikely a prosecutor would try to leverage the archaic laws against a defendant, but instead wants the Legislature to act affirmatively now to prevent any question about abortion access in Massachusetts.
“If Roe was to fall, and it took the legislature a few months to act to take the archaic laws off the books, and to pass some kind of affirmative legislation, we would be in this kind of liminal space where the archaic law’s on the books, and someone could potentially try to use the law against either a woman or a clinician," Holder said.