NORTHAMPTON – The Sept. 18 death of Supreme Court Justice Ruth Bader Ginsburg and the recent hearings on Judge Amy Coney Barrett’s nomination to fill her seat has recharged interest among local activists in passing the ROE Act — state legislation that would reduce restrictions on abortion in the commonwealth and, for the first time, introduce an affirmative right to abortion into state law.
“The idea is to affirmatively protect abortion rights in the state of Massachusetts,” said Carrie Baker, a Smith professor and the president of the Abortion Rights Fund of Western Massachusetts.
The bill states that the commonwealth may not interfere with a person’s decision on their pregnancy, and may not restrict appropriate medical techniques used in abortions. The state’s old abortion ban was rendered moot by the 1973 U.S. Supreme Court decision in Roe v. Wade that established the federal right to abortion, as well as a Supreme Judicial Court ruling in 1981 that established that women have a right to abortion under the Massachusetts Constitution. However, the Massachusetts ban wasn’t formally rescinded until 2018, and Baker said that while there’s nothing in the law making abortion illegal in Massachusetts, there’s nothing currently on the books saying that it’s legal, either.
The ROE Act is in the Legislature’s Joint Committee on the Judiciary, where it’s been sitting since last year.
“The fact that the ROE Act is stuck in Judiciary at this late date is concerning,” said Sen. Jo Comerford, D-Northampton, a cosponsor of the bill. “It shouldn’t be there.”
In order to pass this legislative session, the Roe Act must be voted on by Dec. 31.
Comerford said she has seen an outpouring of support for the bill from constituents since the death of Ginsburg. And Rep. Lindsay Sabadosa, D-Northampton, reported that one afternoon following the death of the late justice she received an email a minute for about three hours in support of the act.
Sabadosa said that even though she is a co-sponsor, she wants people who support the act to email her.
When she speaks with House leadership about the act, she shares that people have been reaching out with their support. “I need that as evidence,” she said.
Other than establishing an affirmative right to abortion, the Roe Act would also eliminate the need for parental consent for a minor to get an abortion, strengthen the ability to terminate a pregnancy after 24 weeks if the patient’s physical or mental health is threatened, allow the termination of a fetus after 24 weeks in the case of lethal fetal abnormalities and when a fetus is incapable of sustained life outside of the uterus, and include abortion in Health Safety Net (HSN) coverage, which is available for low-income Massachusetts residents not eligible for MassHealth. The text of the bill can be found at malegislature.gov/Bills/191/SD109.
Ginsburg was the dean of the Supreme Court’s liberal wing and a longtime supporter of abortion rights. Her likely replacement, Barrett, is far more conservative.
Baker noted that Barrett was a member of Faculty for Life while teaching at the University of Notre Dame, and said she’s been an “activist against abortion.”
Baker also pointed out that Barrett signed on to a statement claiming that life begins at fertilization, a position that Baker said can threaten both birth control and in-vitro fertilization treatments.
Paul Collins Jr., a professor at the University of Massachusetts Amherst who studies how Supreme Court justices are selected and how they vote, is not expecting any surprises on how the Senate will vote on Barrett’s nomination. Given that Senate Republicans have the numbers to seat her on the nation’s highest court, he said, “It’s extremely likely that she’ll be confirmed.”
And although it is not clear whether or not Barrett would vote to overturn Roe v. Wade, Collins said, it is almost certain that she will vote to chip away at the decision.
“Her personal opinion on abortion rights is very clear,” he said.
Collins noted that Barrett testified during her confirmation hearing that her personal opinions wouldn’t influence her rulings, but he said that hasn’t held true for how previous justices have voted.
If Barrett ascends to the Supreme Court and Roe v. Wade is overturned, the regulation of abortion would revert to the states.
“It probably won’t have a big effect on Massachusetts,” Collins said. It’s what might happen in other states that most concerns Sabadosa and other women’s advocates.
“Imagine what laws Nebraska is going to implement,” she said. “It’s going to make it so much worse in places where it’s (getting an abortion) already very difficult.”
Loretta Ross, a visiting professor at Smith College in the Program for the Study of Women and Gender, is a resident of Atlanta.
“I think it’s very brave of Massachusetts and very forward-looking,” she said of the ROE Act.
Ross’ home state of Georgia has been putting more and more restrictions on abortion, including the passage of a bill banning abortions when a fetal heartbeat can be detected, which occurs around the sixth week of pregnancy.
“We’re heading in the wrong direction on abortion,” she said.
The Georgia law was struck down by a federal judge, but that ruling is being appealed.
The potential implications of having Barrett on the court — which will create a 6-3 conservative majority there — is sparking interest in the ROE Act, Baker said. She noted an uptick in people offering to volunteer at the Abortion Rights Fund of Western Massachusetts.
“People are mobilizing at the state level and at the local level,” she said, spurred by the very real possibility of Roe v. Wade being overturned.
Bill progressingOnce the ROE Act is shaped into a final form and released by the Joint Committee on the Judiciary, Sabadosa said she believes it will move swiftly through the House Ways and Means Committee and to the House floor. After conversations with House leadership, she said, “I feel more confident and optimistic that the bill will move forward.”
For her part, Comerford said she has reached out to both Senate President Karen Spilka, D-Ashland, and to Jamie Eldridge, D-Acton, the Senate chair of the Joint Committee on the Judiciary, multiple times saying that she wants the bill to make it out of committee.
“There is a place for it in these last months,” she said.
Comerford said she believes the bill would pass the Senate, but can’t speak about its chances in the House, while Sabadosa said that it’s understood that the bill won’t come to a vote without the votes to pass.
Sabadosa said that, even though Ginsburg’s death may have renewed interest in the bill, it was always urgent and necessary. And she noted how the pandemic has made abortion access more difficult if one has to travel out of state to get one.
“This bill protects vulnerable people in our state,” Sabadosa said. “This legislation has always been essential.”
Reflecting on the legacy of Ginsburg, Sabadosa said passage of the ROE Act would be a good way to honor the late justice.
“It would be a very fitting tribute to her,” she said.
Bera Dunau can be reached at bdunau@gazettenet.com.