Unconstitutional Massachusetts Laws
With the U.S. Supreme Court poised to approve additional restrictions on choice, now is the time to repeal some of the unconstitutional abortion and contraceptive restrictions in Massachusetts. This bill covers three important areas: an unconstitutional, pre-Roe v. Wade abortion ban, an unconstitutional hospitalization requirement, and a contraceptive restriction to married couples. Abortion Ban:The Massachusetts pre-Roe abortion ban has never been enjoined by a court, though it is unconstitutional under both Roe and case law interpreting our state constitution. The ban applies throughout pregnancy and contains no exception. This bill includes language that would repeal each of the sections providing for the ban. Specifics of the ban and related pre-Roe laws include: • 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, date of last amendment unclear, perhaps 1902). • 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). Hospitalization Requirements: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. The bill repeals this requirement. Contraceptive Restriction to "Married" Couples:Massachusetts has an unconstitutional and unenforceable law that limits the use of contraceptives to married people (Mass. Gen. Laws Ann. Ch. 272, § 21A, enacted 1966). The U. S. Supreme Court invalidated this law, holding that the constitutional right to privacy extends to the reproductive decisions of both married and unmarried people (Eisenstadt v. Baird, 405 U.S. 438, 1972). This bill includes language that strikes the word "married" from the sections allowing for contraceptive prescriptions.
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