Repealing Archaic Anti-Choice Statutes
Despite the Commonwealth’s commitment to promoting public health and improving access to medical care, Massachusetts is one of only four states in the nation with a law dating back to the 1800s that bans all abortions. Although in direct conflict with Roe v. Wade, this statute has not been enjoined by a court or repealed by the legislature. A second outdated provision would require abortions after the twelfth week of pregnancy be performed in hospitals – effectively banning much of this care across the Commonwealth. And an arcane measure outlawing birth control for unmarried couples remains on the books. All three of these archaic statutes are unconstitutional, and any attempt to enforce them would jeopardize women’s health and well-being. An Act Updating the Public Health Laws (H.1745, S.1610), sponsored by Senator Harriette Chandler and Representative Ellen Story repeals statutes in three important areas:
Pre-Roe v. Wade Abortion Ban:
The Massachusetts abortion ban applies throughout pregnancy and contains no exception. Prior to the U.S. Supreme Court’s ruling in Roe v. Wade in 1973, state abortion bans like this one forced an estimated 1.2 million women each year to resort to illegal abortions [1]. At the time, these unsafe, illegal abortions were the leading cause of maternal mortality in this country. Since abortion became legal in the U.S., maternal mortality and morbidity has declined drastically. Although unconstitutional under both Roe and case law interpreting our state constitution, this measure remains on the books [2].
Barrier to Abortion Access:
Massachusetts has an unconstitutional and unenforceable requirement that all non-emergency abortions after the twelfth week of pregnancy must be performed in a hospital, even though it is not medically necessary and few of these facilities actually provide such care. Indeed, 95% of abortions performed today occur in outpatient settings [3], and complications are extremely rare (fewer than 0.3% of abortion patients require hospitalization [4]). Most hospitals in Massachusetts do not provide abortion care, and the Commonwealth – like the rest of the nation – has experienced an overall decline in abortion providers, including availability of hospital-based services [5]. Abortion care provided in a hospital setting is also considerably more expensive and is often limited to women with heath complications and/or those needing care at later stages of pregnancy. Mandating that abortion care be provided in hospitals after twelve weeks would force many women to delay or forgo these procedures due to lack of providers or inability to afford the costs. With the health care system stretched and resources scarce, enforcing this requirement could also undermine access to other critical hospital-based care for citizens of the Commonwealth.
Contraceptive Restriction to "Married" Couples: Massachusetts has an unconstitutional and unenforceable law that limits the use of contraceptives to married people. While women’s birth control options have improved significantly in recent years, nearly half of all pregnancies in the U.S. are still unintended [6]. Indeed, the average woman who has two children in her lifetime still spends nearly 30 years trying not to become pregnant [7]. Access to contraception is essential to being able to avoid an unplanned pregnancy, which can have far-reaching consequences for a woman, her family, and society at large. For instance, women who were not planning to become pregnant are less likely to receive timely prenatal care, which can adversely affect their health during pregnancy and their birth outcomes [8]. The U. S. Supreme Court invalidated this law in 1972, holding that the constitutional right to privacy extends to the reproductive decisions of both married and unmarried people [9]. Prepared by NARAL Pro-Choice Massachusetts Updated July 2009 Notes: [1] Lewit S and Tietze C, Abortion, Scientific American, 1969, 220(1):21–27. [2] Cates W, Grimes DA and Schulz FK, The public health impact of legal abortion: 30 years later, Perspectives on Sexual and Reproductive Health, 2003, 35(1):25–28. [3] Jones RK et al, Abortion in the United States: Incidence and Access to Services, 2005, Perspectives on Sexual and Reproductive Health, 2003, 35(1):6–15.
[4] Henshaw SK, Unintended pregnancy and abortion: a public health perspective, in: Paul M et al., eds., A Clinician’s Guide to Medical and Surgical Abortion, New York: Churchill Livingston, 1999, pp. 11-22. [5] NARAL Pro-Choice Massachusetts, Access to Abortion Care in Massachusetts, September 2009, and Jones RK et al, Abortion in the United States: Incidence and Access to Services, 2005, Perspectives on Sexual and Reproductive Health, 2008, 40(1):6–16. [6] Finer LB and Henshaw SK, Disparities in rates of unintended pregnancy in the United States, 1994 and 2001, Perspectives on Sexual and Reproductive Health, 2006, 38(2):90–96; and Henshaw SK, Unintended Pregnancy in the United States, Family Planning Perspectives, 1998, 30(1):24-29 & 46. [7] The Alan Guttmacher Institute (AGI), Fulfilling the Promise: Public Policy and U.S. Family Planning Clinics, New York: AGI, 2000. [9] Eisenstadt v. Baird, 405 U.S. 438 (1972).
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