Both chambers of the Massachusetts state legislature have voted to include in the state’s upcoming budget language to expand legal abortion. The policy — Amendment 759 in the state house and Amendment 180 in the state senate — is designed to enact components of the Democrats’ radical ROE Act as an add-on to the fiscal year 2021 budget rather than as independent legislation.
Earlier this month, the state house voted 108–49 in favor of adding the amendment to the budget, and just last week, the Senate affirmed the measure in a 33–7 vote. These votes essentially guarantee that the proposed budget will reach the governor’s desk with the abortion expansion included.
Just like the ROE Act, the abortion budget amendment provides first that abortions may be performed for any reason before 24 weeks’ gestation, and they no longer need to be performed by a doctor; a physician’s assistant, nurse practitioner, or midwife also may perform an abortion.
Under the new law, abortions would be permitted after 24 weeks’ gestation — after a newborn can survive and often thrive following an early delivery — if the procedure is deemed “necessary, in the best medical judgment of the physician, to preserve the patient’s physical or mental health.”
This language evokes the 1973 Supreme Court ruling in Doe v. Bolton, the companion case to Roe v. Wade, in which the justices required maternal-health exceptions to all state abortion restrictions and defined “maternal health” expansively to include “all factors — physical, emotional, psychological, familial, and the woman’s age.”
In other words, the Massachusetts legislature aims to codify into state law the enormous loophole created by Roe and Doe, permitting all abortions after fetal viability so long as one doctor — the abortionist, who has a vested financial interest in performing the procedure — is willing to certify that any aspect of the woman’s health could be adversely affected by continued pregnancy.
The policy would also loosen the state’s parental-involvement laws, erasing the requirement that minor girls obtain consent from their parents before a doctor performs an abortion on them. In the past, Massachusetts has allowed minors to use a judicial-bypass procedure to override the wishes of their parents and obtain an abortion anyway. This measure would remove that part of the process by granting minors access to legal abortion without parental consent.
As Dr. Michael New has outlined elsewhere at National Review, in 1981, Massachusetts became one of the first states to require that minors receive parental consent before an abortion. “A 1986 study in the American Journal of Public Health found strong statistical evidence that this parental-involvement law reduced the abortion rate among minors in Massachusetts,” he adds.
Though proponents of unlimited abortion rights often pretend that parental-consent laws serve no purpose other than to subject young girls to unbearable conflicts with their parents, in truth these laws serve as important safeguards — especially considering the likelihood that some number of minors seeking an abortion could be doing so after experiencing sexual assault.
Finally, the new measure would loosen the state requirement that physicians attempt to preserve the life and health of any newborn child born alive after a failed abortion procedure. Under current law, the abortionist is required to “take all reasonable steps, both during and subsequent to the abortion, in keeping with good medical practice, consistent with the procedure being used, to preserve the life and health of the aborted child.”
Considering that the aim of an abortion procedure is to end the life of the unborn child, this wording is fairly ludicrous, but nevertheless it is an important effort to ensure that born-alive infants aren’t killed or left to die of neglect after birth.
That will no longer be the case if this new measure takes effect. The language mandating care for the child would be replaced with language requiring only that there be “life-supporting equipment” present in the room — not that the physician actually use that equipment, or any other measures, to care for a newborn. The amendment also eliminates the word “child,” referring to the newborn instead with the sterile term “live birth.”
Some reporting suggests that Massachusetts governor Charlie Baker, a liberal Republican, is unlikely to sign the budget if it includes non-fiscal policy measures such as these attempts to expand legal abortion. Earlier this month, Baker said of the Democratic attempt to include abortion in the budget, “I do share some of the unhappiness that was raised by a number of members of the Republican Party — that putting policy in the budget was something that both leaders in the House and Senate said they would not do. And it’s pretty hard to argue that this isn’t a major policy initiative that is now in the budget.”
Though Baker supports abortion, he has expressed some qualms about the ROE Act, saying that he has “concerns about eliminating the parental-notification requirement” and about “changing the terms and conditions associated with late-term abortions in Massachusetts.”
Democrats in Massachusetts might not achieve victory this time around, but their efforts are a glimpse into the policy landscape abortion-rights activists hope to enshrine across the country in the event that Roe and subsequent abortion jurisprudence are undone.