ANTI-CHOICE LAWS
Abortion Ban
NEAR-TOTAL
Massachusetts has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The ban provides that whoever, with the intent to cause an abortion, unlawfully advises a woman to take any substance to induce abortion, or prescribes such a substance, or uses any instrument to produce an abortion will be imprisoned for up to seven years and fined up to $2000. Mass. Gen. Laws Ann. ch. 272, § 19 (Enacted 1845; Last Amended xxxx).
Any person who knowingly advertises abortion services will be imprisoned for up to three years or fined up to $1000. Mass. Gen. Laws Ann. ch. 272, § 20 (Enacted 1847; Last Amended 1966). Any person who: (1) sells or otherwise distributes any drug, instrument, or other article intended for causing abortion; (2) advertises how such articles may be obtained; or (3) manufactures such articles will be imprisoned for up to five years or fined from $100 to $1000. Mass. Gen. Laws Ann. ch. 272, § 21 (Enacted 1879; Last Amended 1966).
Biased Counseling & Mandatory Delay
Massachusetts has a partially unconstitutional and unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after she signs a consent form that must include: (1) a description of the stage of development of the "unborn child"; (2) the type of abortion procedure to be used and the possible complications of the abortion; (3) the availability of alternatives to abortion; and (4) a statement that a woman's choice not to terminate a pregnancy shall not constitute grounds for the denial of public assistance. Mass. Gen. Laws Ann. ch. 112, § 12S (Enacted 1974; Last Amended 1980).
A court held that the mandatory delay and the requirement that the consent form include a description of fetal development are unconstitutional. Planned Parenthood League of Mass., Inc. v. Bellotti, No. 80-1166-MA (D. Mass. Nov. 4, 1987).
Insurance Prohibition for Abortion
Health insurance purchased for state employees may not provide coverage for certain abortion procedures after viability unless the procedure is necessary to preserve the woman's life or continuation of the pregnancy will impose a "substantial risk of grave impairment" on the woman's physical or mental health. 1996 Mass. Legis. Serv. ch. 366, § 15 (Enacted 1996). Health maintenance organizations may not be required to provide payment or referrals for abortions unless necessary to preserve the woman's life. Mass. Gen. Laws Ann. ch. 176G, § 17 (Original Statute Enacted 1976; Relevant Provision Enacted 1979).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Massachusetts allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, persons associated with, employed by, or on the medical staff of a hospital or health facility, private hospitals, or health facilities.
What does the refusal clause allow? No physician or person associated with, employed by, or on the medical staff of a hospital or health facility, who objects in writing on moral or religious grounds, may be required to participate in medical procedures that result in an abortion. The refusal to participate may not be a basis for a claim for damages or other recriminatory action. The refusal of an applicant to a medical, nursing, social work, or psychology program to agree to counsel, suggest, recommend, assist, or in any way participate in abortion due to moral or religious objection may not be a basis for discrimination.
Conscientious objection to abortion may not be a basis for discrimination in employment, refusal to grant financial assistance by a state-aided program, or detrimental action by a program or institution supported at least in part by the state. No private hospital or health facility may be required to admit a woman for the purpose of performing an abortion. The refusal to admit may not be a basis for discrimination by any person or entity.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Mass. Gen. Laws Ann. ch. 112, § 12I (Enacted 1973; Last Amended 1981); Mass. Gen. Laws Ann. ch. 272, § 21B (Enacted 1973).
FAMILY PLANNING REFUSAL CLAUSE
Massachusetts allows certain individuals or entities to refuse to provide family planning and birth control services.
To whom does the refusal clause apply? Private hospitals or other health facilities.
What does the refusal clause allow? No private hospital or health facility may be required to admit a woman for the purpose of receiving contraceptive devices or information if such services are referrals are contrary to the religious or moral principles of the hospital or facility. In addition, no private hospital or health facility may be required to furnish or provide referrals for contraceptive devices or information or family planning services if such services are referrals are contrary to the religious or moral principles of the hospital or facility.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral contraceptive devices or information or family planning services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Mass. Gen. Laws Ann. ch. 272, § 21B (Enacted 1973).
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although Massachusetts law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Employers that are churches or qualified church-controlled organizations.
What does the refusal clause allow? A churches or qualified church-controlled organization is not required to provide equitable coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. The law applies to churches or qualified church-controlled organizations as defined by federal law.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Mass. Gen. Laws Ann. ch. 175, § 47W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176A, § 8W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176B, § 4W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176G, § 4O (Enacted 2002).
STERILIZATION REFUSAL CLAUSE
Massachusetts allows certain individuals or entities to refuse to perform or participate in sterilizing procedures.
To whom does the refusal clause apply? Physicians, persons associated with, employed by, or on the medical staff of a hospital or health facility, private hospitals, or health facilities.
What does the refusal clause allow? No physician or person associated with, employed by, or on the medical staff of a hospital or health facility, who objects in writing on moral or religious grounds, may be required to participate in medical procedures that result in sterilization. The refusal to participate may not be a basis for a claim for damages or other recriminatory action. The refusal of an applicant to a medical, nursing, social work, or psychology program to agree to counsel, suggest, recommend, assist, or in any way participate in a sterilization due to moral or religious objection may not be a basis for discrimination. No private hospital or health facility may be required to admit a woman for the purpose of performing a sterilization. The refusal to admit may not be a basis for discrimination by any person or entity.
Must the refusal be in writing? Yes.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilizing procedures? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Mass. Gen. Laws Ann. ch. 112, § 12I (Enacted 1973; Last Amended 1981); Mass. Gen. Laws Ann. ch. 272, § 21B (Enacted 1973).
Restrictions on Young Women's Access to Abortion
Massachusetts law restricts young women's access to abortion.
Is the law enforceable? Yes, although a state court held that the two-parent requirement is unconstitutional and unenforceable under the due process provisions of the Massachusetts Declaration of Rights as an unjustified burden on a young woman's right to choose. The court issued an order that the law be construed to require the consent of only one parent. Planned Parenthood League of Mass., Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997).
Who is considered a minor? A young woman under the age of 18 and not married.
What is required - parental consent or parental notice? Consent.
Who must provide consent? Pursuant to a court's decision, one parent. (As written, two parents).
Are there other trusted adults who may provide consent instead? No.
What is the process for obtaining consent? As written, a young woman may not obtain an abortion unless the attending physician secures the written consent of both parents. However, consent of one parent is sufficient if one of the pregnant woman's parents has died or is unavailable. Consent of the custodial parent is sufficient if her parents are divorced.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes. A doctor may perform an abortion for a minor without her parents' consent "in an emergency requiring immediate action."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and capable of giving informed consent or that an abortion is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. A court has ruled that the two-parent requirement is unconstitutional under the State Declaration of Rights and has issued an order that the law be construed to require the consent of only one parent. Planned Parenthood League of Mass., Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997).
Other information about the law: None.
Mass. Gen. Laws Ann. ch. 112, § 12S (Enacted 1974; Last Amended 1980).
Targeted Regulation of Abortion Providers (TRAP)
Massachusetts prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.
Massachusetts has an unconstitutional and unenforceable requirement that all non-emergency abortions during or after the thirteenth week of pregnancy must be performed "in a hospital duly authorized to provide facilities for general surgery." Mass. Gen. Laws Ann. ch. 112, § 12Q (Enacted 1974; Renumbered and Amended 1977).
A state appellate court held that the requirement is unconstitutional. See In Re Mary Moe, 517 N.E.2d 170 (Mass. App. Ct. 1987). See also Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (holding second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion).
Restrictions on Who May Perform Abortions
Massachusetts prohibits certain qualified health care professionals from performing abortions.
Only a physician authorized to practice medicine in the state may perform an abortion. Mass. Gen. Laws Ann. ch. 112, § 12K (Enacted 1974; Last Renumbered 1977; Last Amended 2005), Mass. Gen. Laws Ann. ch. 112, § 12L (Enacted 1974; Last Renumbered 1977).
PRO-CHOICE LAWS
Contraceptive Equity
Massachusetts law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for outpatient prescription drugs and devices or outpatient services, it must provide coverage for any Food and Drug Administration-approved outpatient prescription contraceptive drugs or devices or any outpatient contraceptive services.
To which insurance plans does the law apply? Individual and group insurance policies, individual or group medical or hospital service agreements, and health maintenance organization (HMO) policies issued or renewed on or after January 1, 2003 that provide coverage for prescription drugs and devices or outpatient services.
Does the law provide additional protections for women? Yes. Coverage for prescription contraceptive drugs and devices and outpatient contraceptive services must be provided under the same terms and conditions as those for other prescription drugs and devices and other outpatient services.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Employers that are churches or qualified church-controlled organizations.
What does the refusal clause allow? A church or qualified church-controlled organization is not required to provide equitable coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Mass. Gen. Laws Ann. ch. 175, § 47W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176A, § 8W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176B, § 4W (Enacted 2002); Mass. Gen. Laws Ann. ch. 176G, § 40 (Enacted 2002).
Emergency Contraception
PHARMACY ACCESS TO EMERGENCY CONTRACEPTION (EC)
Massachusetts explicity allows pharmacists to provide emergency contraception (EC) directly to women without a prescription. A pharmacist may dispense EC to a woman in accordance with procedures developed by a practicing physician.
All pharmacists dispensing EC must first complete an EC training program approved by the Commissioner of Public Health.
Mass. Gen. Laws Ann. ch. 94C, § 19A (Enacted 2005).
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
Massachusetts law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms. As part of the minimum standards for the examination and treatment of a sexual assault victim, a physician or other health care provider must provide a sexual assault victim with medically and factually accurate written information about EC, offer her EC, and dispense EC to her upon request.
Mass. Gen. Laws Ann. ch. 41, § 97B (Original Statute Enacted 1974; last amended 2005); Mass. Gen. Laws Ann. ch. 111, § 70E (Original Statute Enacted 1979; last amended 2005).
Low-Income Women's Access to Abortion
Massachusetts allows women eligible for state medical assistance for general health care to obtain public funds to pay for a medically necessary abortion, or for an abortion if the woman is a victim of rape or incest reported to a law enforcement agency or public health service within 60 days of the incident. A medically necessary abortion is one which is necessary in light of all factors affecting the woman's health. Mass. Regs. Code tit. 130, § 484.001, 433.455; Commonwealth of Mass., Medical Assistance Program Provider Manual Series, Abortion Clinic Manual, § 484.001 (Mar. 1, 1994) at http://www.mass.gov/Eeohhs2/docs/masshealth/regs_provider/regs_abortionclinic.pdf.
A court held that a previous statute that prohibited state funds from paying for abortion except to preserve the woman's life was unconstitutional under the Massachusetts Declaration of Rights because it prohibited reimbursement for medically necessary abortion services. Moe v. Sec'y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981).
Protection Against Clinic Violence
Whoever knowingly obstructs entry to or departure from any medical facility or who enters or remains in any medical facility so as to impede the provision of medical services, in violation of a court order, written notice, or after having been asked to refrain by a law enforcement official or a facility representative, for a first offense, will be fined up to $1,000, imprisoned for up to six months, or both, and for each subsequent violation, will be fined from $500 to $5,000, imprisoned for up to 2.5 years, or both. An aggrieved medical facility may bring a civil action for injunctive relief, compensatory and punitive damages, costs, and attorneys' fees. Mass. Gen. Laws Ann. ch. 266, §120E (Enacted 1993).
In addition, any person who knowingly enters or remains on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive-health-care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive-health-care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway shall be punished, for a first offense, by a fine of up to $500, imprisonment for up to three months, or both, and for each subsequent offense, by a fine of $500 to $5,000, imprisonment for up to 2.5 years, or both. Mass. Gen. Laws Ann. ch. 266, §120E1/2(b) (Enacted 2000; Last Amended 2007).
Any person who knowingly obstructs, detains, hinders, impedes, or blocks another person's entry to or exit from a reproductive-health-care facility shall be punished, for the first offense, by a fine of up to $500, imprisonment for up to three months, or both, and for each subsequent offense, by a fine of $500 to $5,000, imprisonment for up to 2.5 years, or both. An aggrieved reproductive-health-care facility or person may bring a civil action for equitable relief. In addition, any person whose rights to express their views, assemble, or pray near a reproductive-health-care facility have been violated or interfered with may bring a civil action for equitable relief. Mass. Gen. Laws Ann. ch. 266, §120E1/2 (Enacted 2000; Last Amended 2007).
Although a lower court issued a preliminary injunction prohibiting the enforcement of this law's "bubble-zone" provision, the U.S. Court of Appeals for the First Circuit reversed the decision and allowed the "bubble-zone" provision to take effect. McGuire v. Reilly, 122 F. Supp. 2d 97 (D. Mass. 2000), rev'd and remanded, 260 F.3d 36 (1st Cir. 2001). See also McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004) (court holding that statute was constitutional), cert. denied, 544 U.S. 974 (2005).
In January 2008, a motion was filed for preliminary injunction of Mass. Gen. L. chapter 266, Section 120E1/2(b), as amended, which creates a fixed buffer with a radius of 35 feet around the entrances, exits and driveways of reproductive-health-care facilities that provide abortions. In August 2008, the U.S. District Court for the District of Massachusetts upheld the facial constitutionality of the statute, and denied the plaintiffs' request for preliminary and permanent injunctive relief. McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008). The U.S. Court of Appeals for the First Circuit affirmed this decision in July 2009. McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008), aff'd, No. 08-2310 (1st Cir. 2009).
State Constitutional Protection
The Massachusetts Declaration of Rights protects the right to reproductive choice as a fundamental right and to a greater extent than the federal Constitution. The Massachusetts Supreme Judicial Court held that a law limiting state medical assistance for abortion to cases of life endangerment was unconstitutional under the Declaration of Rights because it prohibited reimbursement for medically necessary abortion services. Moe v. Sec'y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
The Massachusetts Supreme Judicial Court held that imposing a two-parent consent requirement upon a minor seeking an abortion, even with a judicial bypass, is unconstitutional under the Declaration of Rights. Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997). The U.S. Supreme Court has held that a two-parent notice requirement with a judicial bypass is constitutional. Hodgson v. Minnesota, 497 U.S. 417 (1990).
OTHER LAWS
Post-Viability Abortion Restriction
Massachusetts' post-viability abortion restriction provides that after 24 weeks, no abortion may be performed unless necessary to preserve the woman's life or to prevent a "substantial risk of grave impairment of her physical or mental health." The physician must take all reasonable steps, consistent with the procedure used and good medical practice, to preserve the life and health of the fetus. Mass. Gen. Laws Ann. ch. 112, § 12M (Enacted 1974; Last Renumbered 1977), 12P (Enacted 1974; Last Renumbered 1977).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Massachusetts' post-viability restriction because the health exception is dangerously narrow. NARAL Pro-Choice America further opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 24 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
