BOSTON (State House News Service) — Language codifying and expanding abortion access rights in Massachusetts is virtually guaranteed to land on Gov. Charlie Baker's desk soon after the Senate voted 33-7 on Wednesday to add major policy changes to its fiscal year 2021 budget.
Six days after the House adopted a similar budget amendment, the Senate followed suit with a lame-duck session push to revamp state abortion laws amid growing worries that a conservative U.S. Supreme Court majority will erode or overturn the 1973 Roe v. Wade decision.
Both branches of the Legislature, where Democrats enjoy super-majority status, have now approved budget amendments based on a bill known as the ROE Act with margins large enough to override a gubernatorial veto - Republican Gov. Charlie Baker hasn't threatened one but also has not been vocally pushing for the changes.
"The time has come for urgent action," said Senate President Emerita Harriette Chandler, who authored the amendment and the original bill that it mirrored. "I believe in an affirmative right to choose, but this right now hangs in the balance. Those of us who remember the days before legal abortion and contraception must unite with those of us who never knew those dark times to protect this right at all costs."
The amendment would ensure that state law explicitly allows abortions, which supporters said is a critical safety net if the federal judiciary alters the precedent that Roe v. Wade set.
It would also allow abortions after 24 weeks of pregnancy in cases with a diagnosed fatal fetal anomaly and lower the age above which a woman can seek the procedure without parental or court approval from 18 to 16.
Under current law, individuals who learn late in pregnancy that their child will not survive outside the womb must leave the state to secure an abortion after 24 weeks, a dynamic that backers of the legislation say forces many families into a harrowing choice between carrying an untenable pregnancy to term or traveling elsewhere for the care they want.
Activists have also been calling for lawmakers to lower the age for a woman to independently secure an abortion. The existing system, they argue, forces 16- and 17-year-olds who have survived incest or who do not have supportive families to get permission or to face the sometimes traumatic process of getting court approval.
The abortion votes in the House and Senate — both taken after Election Day during debate on a budget that was due back in July — drew criticism from Republicans and a handful of Democrats, particularly after Democratic leaders indicated they wanted to steer clear of major policy issues during debate on the spending plan.
A version of the ROE Act has been in the Judiciary Committee since January 2019, but legislative leaders held it there all session despite its popularity among lawmakers. The committee did not act on it by a deadline last Thursday, the same day that the House attached the abortion access amendment to its budget.
Minority Leader Bruce Tarr criticized the approach, arguing on the Senate floor that the amendment circumvented the committee process and that the availability of just a single further amendment to Chandler's proposal stifled debate by preventing the kinds of amendments that a standalone bill would attract.
"In this extraordinary year, we would take up a matter that is incredibly important, I would suggest, to every single member of the Senate, and do it in such a way that says, 'You are cut out. You get one further amendment,' " Tarr said. "No opportunity for people to say, 'Let's try to improve this, let's offer amendments, let's try to debate them, let's include the members of the Senate as we always do in a full-throated, reasoned, inclusive discussion.' "
"We move forward, that's gone," he continued. "What a sad thing that would be for the state Senate."
The one unsuccessful further amendment, filed by Republican Sen. Patrick O'Connor of Weymouth, would have scrapped sections of the proposal lowering the age for a woman to seek an abortion without a parent or judge's permission and created a commission to study minor consent.
O'Connor said during session that he agrees women in Massachusetts should have the right to an abortion after 24 weeks of pregnancy in cases of fatal fetal anomaly, but that he worried about the impacts of allowing 16- and 17-year-olds to secure the procedure alone.
"How many people, because of human nature, at 16 years old would go it alone when they could have gone to their parents and had that support system in place?" O'Connor said.
Supporters argued, though, that the matter warranted immediate action following the confirmation last month of Justice Amy Coney Barrett, widely viewed by abortion activists and lawmakers as an opponent to the precedent set in Roe v. Wade.
"Some members and some of my colleagues have argued that this budget debate isn't the right vehicle to advance this amendment," said Sen. Cynthia Creem, a Newton Democrat. "We cannot let process get in the way of protecting a woman's right to choose. Whether this was in study or came out negatively, the issue is the same: it's here. This is an issue that will benefit women across Massachusetts, whether they are rich, poor, Black, White, or brown. Are we to tell those women that we don't care about protecting their bodily autonomy?"
Tarr, O'Connor and the chamber's two other Republican members, Ryan Fattman of Sutton and Dean Tran of Fitchburg, voted against the underlying amendment. Three Democrats joined them: Michael Rush of West Roxbury, Walter Timilty of Milton, and John Velis of Westfield.
The Senate's margin was wider than the 108-49 vote in the House on a similar amendment Thursday, but both surpassed the two-thirds majority Democrats would need to force the measure into law if Baker opposes it.
Baker has not said whether he would veto the ROE Act or a similar amendment, but he voiced similar process complaints to his Republican counterparts about the proposal's inclusion in a spending plan.
"I do share some of the unhappiness that was raised by a number of members of the Republican Party, that putting policy in the budget was something that both leaders in the House and Senate said they would not do," Baker said at a press conference Friday. "And it's pretty hard to argue that this isn't a major policy initiative that is now in the budget."
When the two branches agreed to extend formal sessions beyond their traditional July 31 expiration, Senate President Karen Spilka said she intended to keep work focused on the budget, the five bills in private conference committee negotiations, and COVID responses.
On Wednesday, she praised the Senate for its work on the abortion-related amendment.
"With judicial threats to Roe v. Wade looming on the federal level, I am proud the Massachusetts State Senate has taken this step to further codify a woman's right to the health care she deserves, and the right to choose if and when to begin a family," Spilka said in a statement. "A woman's ability to control her reproductive future is fundamental to her freedom, her agency and her humanity."
Leaders of three advocacy groups backing the amendment -- the American Civil Liberties Union of Massachusetts, NARAL Pro-Choice Massachusetts, and the Planned Parenthood Advocacy Fund of Massachusetts -- said in a joint statement that its passage is a key step in a national fight.
"On Election Day, Bay Staters made their position clear when they re-elected every single ROE Act supporter and voted out anti-abortion lawmakers," representatives for the three groups said in a joint statement. "Legislators listened to voters, constituents, providers, families, and activists and adopted an amendment that would make abortion more accessible. From Pittsfield to the Cape, these measures have a broad range of support from Bay Staters of all walks of life."
Last week, Catholic Church leaders outlined their opposition to the House version of the amendment, stressing that the faith teaches that life begins at conception.
"While we acknowledge the amendment addresses some concerns that were raised about the deeply troubling provisions of the ROE legislation, the fact remains that abortion would remain an option under certain circumstances for the full term of the pregnancy," Boston Archbishop Sean O'Malley, Worcester Bishop Robert McManus and Fall River Bishop Edgar da Cunha said in a joint statement. "That fact alone is in direct conflict with Catholic teaching and must be opposed."
By Chris Lisinski, State House News Service