Columnist Bill Newman: Women’s right to choose under assault from many angles

Published: 8/5/2018 3:04:58 PM

Today, a quiz. When did Massachusetts repeal its laws that made fornication, adultery, birth control for unmarried women and most abortions illegal?

a) In 2018 because hello, it’s the 21st Century and Donald Trump is president;

b) In 1981 after the Massachusetts Supreme Judicial Court ruled that the state constitution guarantees a woman’s right to abortion;

c) In 1967 following the death of Margaret Sanger, the renown birth control advocate;

d) In 1965 after the Supreme Court struck down as unconstitutional the Connecticut law that prohibited the sale or use of birth control; or

e) None of the above.

The answer is (drum roll, please) July, 2018. The reason: Donald Trump nominated Brett Kavanaugh to be the next Associate Justice of the Supreme Court.

In response, the Massachusetts legislature passed the NASTY Women’s Act, which repealed these antiquated laws, NASTY Women being an acronym for Negating Archaic Statutes Targeting Young Women. Although these laws have been dormant for decades, their existence posed the danger that they could be resurrected.

Of course, we can’t know for sure whether the Supreme Court with Brett Kavanaugh as a justice actually would vote to directly overturn Roe v. Wade. Kavanaugh could reach the same result by consistently upholding restrictions on abortions so as to, over time, transform the federal constitutional guarantee of reproductive choice into an illusory promise.

Unfortunately, a Supreme Court bent on reversing or emasculating Roe is only one way in which anti-choice forces are seeking to impose their will on women who do not share their views and beliefs. Fake women’s health centers are another, and there are 30 of them in Massachusetts, including two in Springfield.

These deceptively labeled crisis pregnancy centers exist at physical locations as well as at virtual places strategically positioned on search engines on the web. They deceptively label themselves as crisis pregnancy centers. They fraudulently reel women into their storefronts and websites by promising reproductive health options and then, in a bait and switch, provide misinformation and engage in intimidation to prevent women from even learning about their options or having an abortion. As Harriette Chandler, former interim president of the Massachusetts State Senate, recently wrote, “... FWHCs lie about due dates or push back the appointments in an attempt to make a woman wait until a time when her health options become limited.”

But, you ask, don’t consumer protection laws require truth in advertising and so require these organizations to disclose who they are and what they are all about?

The United States Supreme Court has just answered that question. The answer is no.

In National Institute of Family and Life Advocates v. Becerra, a case decided 5 to 4 on June 26, 2018, the court struck down California’s Reproductive Freedom, Accountability Comprehensive Care, and Transparency Act (the FACT Act). That law required clinics to provide accurate information to patients about free and low-cost publicly funded family planning services, including contraception and abortion. That law also required unlicensed clinics to inform their would-be patients of their unlicensed status.

The Supreme Court’s opinion, written by Justice Clarence Thomas, says that the First Amendment guarantee of free speech allows the FWHCs to operate as they wish. All the women justices — Ginsburg, Kagan and Sotomayor — joined by Justice Stephen Breyer, dissented.

In Massachusetts although we are not protected from these fake pregnancy counselling centers, on the overarching question of access to abortion, we are protected by the Supreme Judicial Court’s 1981 decision in Mary Moe v. Secretary of Administration and Finance. That case guarantees the right to abortion under the due process clause of the state constitution. Therefore, even if the United States Supreme Court guts Roe v. Wade, in this commonwealth abortion will remain a constitutional right — a state-based right.

But while we in Massachusetts can take heart from the recent legislative win and our established constitutional protections, we should be hesitant to claim too big a victory. Frighteningly and sadly, women in many other states, particularly in the South, Midwest, and the Plains, will not be protected by their state laws or constitutions.

Indeed, 14 states already have anti-choice laws that could take effect if Roe were overturned or severely limited. Only nine states have laws that specifically protect abortion rights, according to the Guttmacher Institute. And as Rebecca Hart Holder, the Massachusetts executive director of NARAL Pro-Choice America, has noted, “The lawsuits necessary to overrule Roe are making their way through the courts right now.”

If Roe is reversed, self-induced illegal abortions by coat hanger may return as a norm as would the need to travel great distances at large (often unmeetable) expense to access a legal medical procedure.

It’s nearly impossible to find a silver lining in any of this. But we shouldn’t give up, and there is a national day of protest and action on August 26. Perhaps Trump’s Supreme Court nomination will galvanize pro-choice women and their allies to successful political action, particularly young women who have no idea what life was like before Roe.

Bill Newman is a Northampton-based civil rights and civil liberties lawyer. His column appears on the first Saturday of each month. He can be reached at opinion@gazettenet.com.




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