Boston Globe | With abortion rights under new threat, Mass. lawmakers aim to better protect providers

By Samantha J. Gross | Originally Published by the Boston Globe

Three years ago, when the Supreme Court overturned the landmark Roe v. Wade decision and undid the constitutional right to an abortion, the Massachusetts Legislature was the first to act.

In the waning weeks of the legislative session that year, lawmakers worked uncharacteristically fast to pass a “shield” bill aimed at protecting those seeking abortions, as well as those providing them.

Now, as the federal government escalates threats to abortion rights and medical care for transgender people, the Legislature is gearing up to go further. The Senate Thursday is set to vote on a bill that would work to better protect the identities and personal information of providers and those seeking abortion and gender-affirming care — provisions backers say further solidify Massachusetts’ place as a safe haven and that opponents say work to hide providers from accountability.

“There are things we know now that we didn’t know,” said Dr. Angel Foster, who runs the Massachusetts Medication Abortion Access Project, or The MAP.

If passed, the provisions would restrict state agencies from sharing information with out-of-state investigations, require insurance companies to limit access to patient electronic medical records, and require hospitals to provide emergency abortions if medically necessary.

Under the bill, doctors could use the title of their practice instead of their name on prescription orders, so medication abortion prescribed over telehealth to an out-of-state patient would be protected.

The Massachusetts bill is part of the state Senate’s “Response 2025″ initiative, launched in the spring to push back on the dramatic policy changes unleashed by the Trump administration. The bill is the first tangible legislative effort the Senate has made to respond to Trump as his administration has rolled back protections and funding related to abortion and transgender care.

“The Dobbs decision three years ago made it clear that the fight for abortion access is in the states,” Claire Teylouni, senior director of policy and programs at Boston-based advocacy group Reproductive Equity Now. “It’s up to them to fight back.”

The legislation up for a vote would protect providers like Foster’s group, a so-called “shield law” provider that ships abortion drugs to about 2,500 pregnant women a month. One-third of their patients are from Texas, she said, where abortions are mostly illegal and doctors who perform them face severe penalties, including potential prison time.

The update to the legislation comes at a crucial time, Teylouni said.

In January, Louisiana charged a New York doctor under its total abortion ban for allegedly providing abortion pills via telehealth to a Louisiana teenager. In February, the same doctor was fined by a judge in Texas for mailing abortion pills to a patient there.

On the topic of gender care, just last week, the US Supreme Court upheld a Tennessee state law banning such care for minors, a ruling that gave states broad powers to ban or regulate the treatments.

Massachusetts is one of 22 states and Washington, D.C., that have passed shield laws, with six including protections for telehealth providers who prescribe medication to patients in other states that may criminalize the practice.

Sam Whiting, general counsel at the conservative-leaning Massachusetts Family Institute, argued that the shield laws allow doctors to skirt accountability by hiding their names, and said the idea of shielding doctors and patients violates other states’ right to impose abortion bans or limits on “gender transition surgeries.”

“It’s an infringement on the sovereignty of other states to do what they want,” he said. “It’s Massachusetts trying to export abortion to other states.”

Thirteen states now have total abortion bans, and 28 others ban abortion after six weeks, according to the Guttmacher Institute, a reproductive rights think tank that tracks state policies.

Massachusetts’ current burst of activism began in 2020, even before the Dobbs decision, catalyzed by the death of Supreme Court Justice Ruth Bader Ginsberg.

In anticipation that the Supreme Court would overturn Roe, lawmakers passed the ROE Act at the end of 2020 over then-Governor Charlie Baker’s veto. It codified and expanded the right to abortion in Massachusetts, allowed for abortions after 24 weeks under certain conditions, and lowered the age of required parental consent from 18 to 16.

The state is currently sitting on a stockpile of more than 15,000 doses of the abortion drug mifepristone, ordered up by the governor in case the Supreme Court bans it, and is home to a Reproductive Justice Unit tasked by the attorney general with monitoring new legislation and antiabortion tactics in red states and helping to coordinate policies to counter them.

Meanwhile, the federal government has continued to chip away at abortion rights. While the Trump administration has largely relegated the issue of abortion to the states, the government has rescinded Biden-era guidance to the nation’s hospitals that directed them to provide emergency abortions for women when they are necessary to stabilize their medical condition, rolled back a rule related to patient privacy, and withheld much of the funding for a federal grant program that provides reproductive healthcare to low-income people.

As a result, whether someone can access abortion has become “more of a geographic question,” said Kimya Forouzan, a state policy expert at the Guttmacher Institute, the reproductive rights thinktank.

“We’ve seen the impact these shield laws have had in ensuring some people can still access care even if their state bans the provision of abortion care,” Forouzan said. “Some states recognize where we are at, where the federal government is at, and the hostility the federal government has toward sexual and reproductive healthcare broadly.”