The Roe Act: Protecting The Right To Choose

As we enter a new decade, it is useful to measure the degree of progress we have made to protect the principles of individual liberty. And one of those areas of liberty and personal autonomy is the right to choose. Abortion has always been a sensitive and controversial area of law, and, for many, a difficult topic of conversation. Whether at the State House, in our courts, or in everyday conversation, perhaps the topic of abortion always will be polarizing. Controversial though it may be, I want to use this month’s newsletter to discuss a major piece of legislation currently pending before the Legislature, H.3320 – An Act to remove obstacles and expand abortion access, also known as the ROE Act. While I will discuss the specifics of the bill in greater detail below, the ROE Act is intended to accomplish three main objectives. The ROE Act will 1) modernize our current laws by codifying the right to choose here in Massachusetts; 2) expand access to abortion for those who don’t have health insurance or whose health insurance is excluded from coverage by establishing safety net coverage for abortion care; and 3) remove unnecessary legal barriers that delay and deny access to reproductive health care, by removing mandatory parental approval for those below 18 and allowing for cases of a fatal fetal diagnosis. It will also eliminate restrictions like the currently legal but largely unenforced 24-hour waiting period between counseling and abortions. 

First, it is useful to understand this moment in light of its historical context. Currently, abortion rights in the United States are derived from case law (written decisions of our federal court system), but those rights do not exist in statutory law in Massachusetts. Given the trend of federal case law and the appointment of increasingly conservative judges to the US Supreme Court — now more than ever — I believe it is important to codify the right to choose here in the Commonwealth. If we do so, then even if the US Supreme Court overturns Roe v. Wade, or significantly limits the scope of Roe, the right to choose will be preserved here. And I know that many of you share in this goal. In fact, this has been one of the top issues about which I have heard from you during this session. I want to thank the many constituents who sent in postcards, emails, and met with me in my office over the past year in support of the ROE Act, am proud to have co-sponsored this legislation, and in fact have been advocating for this policy long before this particular legislative session! 

The decision about whether and when to become a parent is one of the most critical life decisions that we make. When people can make decisions that are best for their lives, families thrive, and we build communities where each of us can participate with dignity and equality. During the first 100 years of our country, abortion was considered a criminal offense. By 1827, some states had made it a punishable offense to use abortion drugs, and those convicted could serve up to three years in prison. In 1965, the ruling in Griswold v. Connecticut held that a state’s ban on the use of contraceptives or what we know today as “birth control” violated the right to marital privacy. This case set the precedent of how future cases would be determined as it related to the rights of women making their own health care decisions. When Roe v. Wade was first decided in 1973, it recognized that a woman’s right to decide whether to continue her pregnancy was protected under the constitutional provisions of individual autonomy and privacy. Interestingly enough, Republican President Richard Nixon appointed Judge Harry Blackmun, who authored the Supreme Court opinion that resulted in a 7-2 decision. Yet, as those of us who care deeply about the right to choose have warily observed, the original margin of 7-2 has gradually eroded, and now the right to choose hangs in the balance by a single vote, 5-4.  For instance, in 1992, the Supreme Court reaffirmed the fundamental right created by Roe in the Casey v. Planned Parenthood case, but changed the standard of review and the margin supporting choice narrowed. Now, with the Trump administration’s recent decision to appoint Supreme Court Justice Brett Kavanaugh, and the confirmation of Neil Gorsuch before him (to the seat intended for Merrick Garland who had been nominated by President Obama) it is likely that enough votes now exist for the Supreme Court to overturn the Roe v. Wade decision. 

For some time now, all across the United States, a flurry of state legislative activity restricting the right to choose has been taking place. Many of these measures are carefully written by lawyers for anti-choice advocacy groups and are specifically designed to be cases that can make their way all the way back up to the US Supreme Court in an effort to overturn, or significantly weaken, the rights in Roe. In fact, just since 2011, 33 different states have passed over 400 new laws targeting abortion by restricting safe and legal access. 

Here in Massachusetts, we have safe, legal abortions, and I am working with like-minded colleagues in the Legislature to keep it that way. The ROE Act would codify existing rights into law, expand them, and protect them from changes at the federal level. This bill will allow women to make pregnancy decisions on their own, with the advice of their doctor, protecting safe and legal abortions in our state. However, there is a lot of misinformation surrounding this bill that I hope to clear up in this newsletter.

Shortly after Roe v. Wade decision, many state legislatures passed a slew of legislation that attacked the ruling by implementing laws at the state level that targeted unprotected areas of the ROE decision. In 1974, even Massachusetts passed a law requiring young people under the age of 18 to obtain consent from both parents in order to access abortion. The law was challenged, yet upheld in the 1979 ruling of Bellotti v. Baird, which reinforced that minors must gain parental consent prior to an abortion. The verdict created one of the most controversial aspects of abortion law, which the Roe Act seeks to address. Under current Massachusetts law, without parental consent, young women are required to go through a court process known as a judicial bypass that many experts have deemed burdensome, unnecessary and overly intrusive to the privacy of young women. Studies show that the vast majority of teenagers already confide in a legal parent or guardian in a circumstance where an unintended pregnancy has occurred. But there are many cases where receiving parental consent is not possible. Sometimes there is incest, safety concerns, or parents’ religious beliefs that would prevent them from allowing abortions, thus forcing their children to become parents. Judicial bypass creates a whole series of challenges including (i) creating the need for a teenager to find an attorney; (ii) the process causes students to risk missing two or more days of school, and (iii) the need to find transportation to and from a court hearing, which they must schedule themselves. Of course, they must present their case in front of a judge to acquire a court order which is often stressful and, in most cases, highly intimidating. Additionally, the extensive court process that is required can cause a significant health risk and is proven to cause a delay in receiving time-sensitive care. The average delay caused by judicial bypass is 15 days, while 1 in 5 minors experience delays for up to 21 days.  And unfortunately, for women in low-income areas, abortion services become more expensive and are often out-of-reach during extensive delayed periods of time, as the pregnancy progresses. Consequently, the judicial bypass disproportionately affects young women of color low incomes communities. The experience can be quite overwhelming, and many are forced to seek out of state abortion services. Since 1981, the number of out-of-state abortion care increased by nearly 300%! In addition, since 1981, there have been over 23,000 judicial bypass cases heard, while only two have been denied. In short, there is good reason to believe the judicial bypass process is ineffective and unnecessary.  The ROE Act allows young women to make abortion-related decisions on their own, similar to every other pregnancy decision. By removing the parental consent and judicial bypass barriers, young women can seek a legal, safe abortion without any undue burdens. 

There is also the issue of late-term pregnancies. The ROE Act adds an exemption for abortion care after 24 weeks of pregnancy in cases of a lethal fetal diagnosis, which is determined by a doctor and means that a fetus is not expected to survive after delivery. A fatal fetal anomaly diagnosis is obviously traumatic news for an expectant parent to receive. And the decision to terminate such a pregnancy must be devastating. However, some believe that ROE Act reneges on a doctor’s obligation to save a living child by removing certain sections from the Massachusetts General Laws, which mandate that doctors must do whatever is in their power to save a life. Opponents of the bill mistakenly suggest that this part of the Roe Act would mean that if an infant were to be born alive following an abortion that doctors would kill it or let it die. In fact, the bill will remove that language from our current laws because it is inflammatory and medically inaccurate. I understand the concern about the removal of that language, but the reality is that doctors and medical professionals already adhere to a code of ethics and state regulations which would put the responsibility on the doctor to resuscitate an infant that survived the abortion procedure (though cases like these are literally unheard of). The section being removed from the General Laws is irrelevant to that obligation. Doctors are medical professionals who work to the highest ethical standards, are subject to oversight by the state, and are obligated to make appropriate medical judgments strictly based on their patients’ health and well-being. Appropriately, the Roe Act puts all abortion-related decisions in the hands of a woman and her doctor. There are countless stories of people being forced to carry a pregnancy to term only to go through the painful and traumatic experiences of having to deliver a dead infant. If a woman receives the terrible news of a fatal fetal diagnosis, in consultation with her medical professionals, she should have the right to terminate the pregnancy.   

In Massachusetts, a full 72% of voters support access to safe and legal abortion. This bill would ensure that protection. I have always been in support of reproductive freedom and Massachusetts values. I believe we should be doing everything we can to protect and increase access to women’s health care rights, especially in these uncertain political times on the national level. 

A few months ago, I was proud to stand with my colleagues in support during testimony at the hearing for the ROE Act. I was happy to see so many people, not only from my district but from across the state, come out and support the legislation. I also had the pleasure of joining constituents in Arlington to discuss the ROE Act recently. Regardless of what goes on in Washington, this legislation will ensure abortion rights are protected in Massachusetts. I have been meeting with senior leaders at the State House to convey my continuing support and advocacy as we try to advance this legislation. 

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Contact Dave

Please never hesitate to contact me for any reason.

Phone: 617-722-2637
Email: dave.rogers@mahouse.gov
Mail: State House Room 544, Boston, MA 02133