Commonwealth Magazine | Lawmakers reach agreement on abortion legislation

By Michael Jonas
Story Originally Appeared in Commonwealth Magazine

WITH THE CLOCK ticking down on the Legislature’s two-year session, House and Senate leaders announced on Monday that negotiators have reached agreement between the two branches on a bill to strengthen abortion rights in Massachusetts. The push for enhanced abortion protections came in the wake of last month’s Supreme Court ruling overturning the landmark 1973 Roe v Wade decision that had established a constitutional basis for the right to obtain an abortion.

The sticking point that held up passage of the new measure centered on when women would retain the right to abortion after 24 weeks of gestation. The House passed legislation in late June that would extend current protections, which allow such later-term abortions in the case of a fatal birth defect, to also permit abortion in cases of a “severe” fetal anomaly. The Senate balked at including that language in its bill and raised concerns that it could draw a gubernatorial veto. Disability advocates also spoke out against the House language.

“We are proud to announce that the reproductive rights conference committee has reached an agreement on legislation that provides legal protections to abortion providers, out-of-state patients, and insurers; expands access to contraceptives; and helps ensure that women who face dire circumstances after 24 weeks of pregnancy are not forced to leave Massachusetts in order to access reproductive health care services,” said a joint statement issued by Senate President Karen Spilka, House Speaker Ron Mariano, and the lead negotiators for the two branches, Sen. Cindy Friedman and Rep. Aaron Michlewitz.

In a press availability Monday afternoon, Friedman said the compromise language spells out that abortion is allowed after 24 weeks in cases where there is “an inability to sustain life outside the uterus without extraordinary medical intervention.”

She said that is clearer than the language of the original House bill referring to cases of a severe fetal anomaly. “‘Severe’ is a word that has a lot of meaning,” Friedman said. “Extraordinary medical intervention has a meaning to medical providers,” she said. Friedman said it describes cases where providers often have little confidence that their actions will make a difference. “In fact, you have a pretty good guarantee that it is not going to change the outcome,” she said.

Versions of the bill passed by the two branches agreed on most issues, including requiring insurers to cover abortion services with no copay, guaranteeing coverage for gender-affirming surgery, and expanding access to emergency contraception. The bills also included protection against out-of-state legal action against Massachusetts providers caring for patients who come here for abortions.

The pivotal question now facing the legislation is what Gov. Charlie Baker will do with the bill. Baker is a strong supporter of abortion rights, but he vetoed a provision of a 2020 bill known as the Roe Act that allowed for abortions after 24 weeks because he objected to the specific language spelling out when it would be permitted. The Legislature ultimately overrode his veto.

But lawmakers have forfeited to Baker ultimate control over the new bill by waiting until the closing days of their session to reach agreement on the bill. Baker has 10 days to act on any bill passed by the Legislature, so if he vetoes the bill after the July 31 end of the session lawmakers would be unable to override his action.

Legislators released the full text of the compromise bill early Monday evening. Baker said earlier in the day that he needs to see the exact wording of the legislation before commenting on whether he’s prepared to sign it. “On all of them words matter,” Baker said about the text of bills. “On this one they really matter.”

“It’s my hope there’s going to be something we can support because obviously this is important to many people here in Massachusetts,” Baker said.

Spilka said the Senate, which unanimously passed the previous version of the bill, would likely take up the compromise legislation on Tuesday or Wednesday. The House, which passed its version of the bill by a wide veto-proof margin, 136-17, must also sign off on the measure before it goes to Baker.

A coalition of abortion-rights advocates applauded the new bill, and urged the full Legislature to quickly pass the bill and Baker to sign it.

“Today, Massachusetts is standing up against hostile state legislatures across the country that have passed extreme anti-abortion bans, threatened providers across borders, and made travel for abortion care more dangerous than ever before,” said Rebecca Hart Holder, executive director of Reproductive Equity Now, one of the coalition members, in a statement. “This historic bill will protect helpers and doctors who provide lawful, lifesaving abortion and gender affirming care, expand access to emergency contraception, and ensure that no one has to leave Massachusetts to obtain abortion care—at any point in their pregnancy.”