Mass. Senate Passes Reproductive Rights Bill; Now Work Starts on Final Compromise

Massachusetts lawmakers can get to work crafting a final reproductive rights bill following the Senate's unanimous vote Wednesday, and distance between the branches on an approach to late-term abortions looms as a speedbump with the window for action closing.

In the latest state-level volley prompted by a U.S. Supreme Court decision overturning Roe v. Wade, the Senate voted 40-0 on a bill (S 2996) that would erect new legal shields for reproductive and gender-affirming care in Massachusetts, ban insurers from shifting abortion costs onto patients, and expand access to emergency contraceptives.

No one spoke in opposition to the bill, and all three of the Senate's Republicans voted in favor alongside the 37 Democrats.

Senators opted against making many changes to the bill, which is at odds with language in the House bill permitting abortions after 24 weeks of pregnancy in cases of "severe" fetal anomalies.

The branches have a matter of days to reconcile differences and produce a compromise to send to Republican Gov. Charlie Baker, who has not taken a public stance on the provision that divided the House and Senate but vetoed legislation two years ago that authorized late-term abortions in more cases.

Both branches have now approved standalone legislation creating new protections against out-of-state legal action and licensing consequences for providers of reproductive health care, including abortions, and gender-affirming care as well as patients who receive those services.

The bills would also require health insurers to cover abortions without copays, deductibles or coinsurance, order the Department of Public Health to issue a standing order allowing any licensed pharmacist to dispense emergency contraceptives, and permit providers to make their home addresses confidential.

"State government, this very chamber, is the only place left for the people in Massachusetts who fight for reproductive justice and freedom, who need reproductive justice and freedom," said Sen. Becca Rausch of Needham, later adding, "We are among the few states in the nation to which the pro-choice majority of Americans can look for leadership as reproductive rights nationally have been blasted into oblivion."

But the House and Senate remain out of alignment on how exactly to update a section of state law that allows abortions after 24 weeks of pregnancy, even as lawmakers in both branches say they are targeting the same goal.

Existing law, updated in 2020 via the ROE Act, permits abortions after 24 weeks of pregnancy if a physician determines there is a "lethal fetal anomaly," that the fetus is "incompatible with sustained life outside the uterus," that the procedure is necessary "to preserve the patient's physical or mental health" or that it is necessary to "perserve the life of a patient."

The House bill, which passed with a 136-17 veto-proof margin and a majority of Republican representatives in support, would expand the language outlining allowable reasons for a late-term abortion to include "severe fetal anomalies."

Supporters said the addition of the word "severe" would fully implement the intent of the underlying law. They point to stories like that of Kate Dineen, whose son suffered a catastrophic stroke in the womb. Dineen ultimately traveled to Maryland for an abortion at 33 weeks pregnant after Massachusetts doctors declined to perform the procedure.

The House's move drew criticism from disability rights advocates and wariness from Sen. Cindy Friedman, the main sponsor of the Senate bill and a smaller-scope version the chamber added to its budget, who said she thinks it could prompt Baker to veto the bill.

"His issues originally were around late-term pregnancies and early consent, and this goes directly at that," Friedman said. "It's just my analytical mind that looks at those things and says, 'Well, I think that's a big concern.'"

Senators did not include any language dealing with "severe" anomalies in their version of the bill. Instead, they adopted an amendment with a voice vote that attempts to clarify that each of the four circumstances that allows a late-term abortion "shall be considered independently" by a doctor and patient not subject to override from a medical review process.

Somerville Sen. Patricia Jehlen, who filed the amendment, recounted a conversation she had with a constituent who learned at 35 weeks pregnant that her daughter had brain abnormalities and would not be able to walk, talk, swallow or support the weight of her head.

"The death would have happened quickly, my constituent told me, since they didn't know if she could coordinate a heartbeat or breathe outside the womb. At the time, her hospital sent her to Colorado," Jehlen said. "If she went today, the wait list in Colorado is five weeks. No one should face that situation."

Friedman said after hearing many other stories like that involving women who sought late-term care but did not receive it, senators determined the problem was "providers not actually following the law that we passed in the ROE Act."

"It is the physician and their patient that determines the outcome of this," she said. "We realized lots of places use panels or they do reviews, and we want to ensure that right is not taken or that decision is made by the person who knows the pregnant person the best and that they are the center of that decision."

"We believe our language clarifies rather than confuses," Senate President Karen Spilka added.

Legislative leaders might resolve those different approaches quickly and informally to get the bill to Baker's desk, or they could tap a conference committee to privately negotiate a compromise.

Either way, they must move quickly if they want to avoid leaving the final decision entirely in the governor's hands. If the Democrats who wield veto-proof margins in both chambers wait too long to reach agreement, they risk allowing Baker to hold onto the bill until August, when under the rules they can no longer order the roll call vote needed for an override or take up an amendment if it is considered controversial.

Over the course of Wednesday's debate, several senators spoke about changes they wanted to make to the bill to expand data privacy, offer paid leave for pregnancy loss, and eliminate restrictions on abortion providers, only to withdraw their amendments without seeking votes.

Instead, they said they hope a new working group that top Senate Democrats launched Wednesday will explore those topics further and craft a plan for additional legislative action down the line.

While Democrats were meeting in a private caucus ahead of Wednesday's session, Spilka assigned Friedman and Public Health Committee Co-chair Sen. Jo Comerford to lead a panel that will "dig deeper into the fundamental reproductive and other substantive rights under threat by the Supreme Court, as well as explore issues regarding data collection and privacy, and later in pregnancy abortions."

With a constitutional right to an abortion no longer in place following the Supreme Court's ruling, roughly two dozen states have already banned or are moving to crack down on the procedure. Some are looking outside their own boundaries, too: state laws in Texas and Oklahoma seek to enforce their bans by allowing private citizens to sue anyone -- including in other states -- involved in providing abortions.

"We continue to be faced with a situation where another state, through state laws enacted by their legislature, is threatening the rights of law-abiding residents in the commonwealth for engaging in activities that are legal under our laws and were enacted by our duly-elected Legislature here in Massachusetts," Friedman said during Wednesday's debate.

Some legal shields are already in place under an executive order Baker issued hours after the Supreme Court's ruling, but Friedman said the bill would make those protections broader and permanent.

Many provisions of the bill were already included in an executive order issued by Baker in the wake of the U.S. Supreme Court's decision to overturn Roe v. Wade.