Massachusetts Governor Charlie Baker split the difference on the proposed abortion expansion amendment, rejecting a proposal to lower the age of consent for abortion but ignoring the objection of opponents that it would legalize a form of infanticide.
The governor returned the state budget bill to the Massachusetts Legislature on Friday with proposed changes to the abortion amendment – neither signing it nor vetoing it.
The governor’s action, which was not widely anticipated, muddies the waters for the last few weeks of the legislative session. State legislators in both chambers now have to act on the governor’s suggestions relatively quickly if they want to get the abortion legislation enacted.
That could prove tricky to accomplish. The current legislative session is scheduled to run out December 31. In theory, state legislators could extend legislative business until January 5, 2021. But that’s the drop-dead date, because the new legislative session starts January 6, and all bills not enacted before then die.
If lawmakers don’t get the abortion legislation to Baker before December 26 – which is a Saturday and the day after Christmas – then Baker wouldn’t have to act on the bill, because the state constitution gives him 10 days to either sign or veto legislation passed by the Legislature.
In the meantime, state legislators can offer amendments to Baker’s amendments, which would take time to consider. Each chamber must pass an identical version of the bill in order to send it back to Baker for his signature or veto.
At the same time, lawmakers are trying to finalize high-priority legislation on Beacon Hill before Christmas, including the state budget and a police reform bill.
For opponents of the abortion amendment, who had been gearing up for trying to flip at least four state representatives in order to uphold a possible veto by the governor, the landscape has changed. If Baker had signed the legislation, it would have become law. If he had vetoed it, then supporters could have tried to override his veto with two-thirds majorities in each chamber — and they appeared to have the votes to do it.
Now, the scenarios are less clear than they appeared earlier this week.
Baker, who supports legal abortion but has expressed opposition to late-term abortion, on Friday afternoon expressed support for the intent of the abortion amendment and for some of its provisions.
Supporters of the abortion amendment emphasize a provision that would allow abortions after 24 weeks if the fetus has a physical condition that would likely result in death shortly after birth. In his letter, Baker endorsed that portion, which would explicitly allow abortions after 24 weeks in cases where “an abortion is warranted because of a lethal fetal anomaly” that is “incompatible with sustained life outside the uterus.”
But he highlighted his opposition to lowering the age of consent as envisioned in the amendment, which is Section 40 in the state budget bill.
“Section 40 affirmatively establishes in Massachusetts law a woman’s right to access an abortion. It also ensures that a woman can access an abortion in cases where the child will not survive after birth. These are important changes to protect a [woman’s] reproductive rights and autonomy in the Commonwealth, and I support them,” Baker wrote in a letter to the Massachusetts House and Senate dated Friday, December 11. “However, I cannot support the other ways that this section expands the availability of late-term abortions and permits minors age 16 and 17 to get an abortion without the consent of a parent or guardian.”
Supporters of the abortion amendment are unhappy with Baker. NARAL Pro-Choice Massachusetts, which supports the abortion legislation, called Baker’s letter to state legislators an “anti-choice amendment.”
Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts, said Friday she is “deeply disappointed” with Baker’s action, questioning his commitment to legal abortion.
"The Governor cannot have it both ways: He cannot call himself pro-choice and keep anti-choice restrictions in place. Current law in Massachusetts is broken, and this amendment maintains the state’s greatest barriers to care." #ROEAct Coalition https://t.co/q68ExfAyIC
The #ROEAct provisions in the state budget were already a compromise.
By maintaining anti-abortion laws that were passed in the 70s with the sole purpose of obstructing care, Gov. Baker is allowing government interjection in health care & trying to mandate family relationships.
— Planned Parenthood Advocacy Fund of MA (@PPAdvocacyMA) December 11, 2020
Opponents of the abortion amendment either have mixed feelings or are cautiously optimistic.
“I’m glad to see the governor pushing back on this extreme abortion legislation,” said Andrew Beckwith, president of the Massachusetts Family Institute, which opposes the amendment, in an interview with New Boston Post. “Now the Legislature should just let this bad bill die, and let Massachusetts babies live.”
Opponents are pleased that Baker raised objections to lowering the age when girls need consent for an abortion from 17 and younger (as it is now) to 15 and younger (as it would be if the abortion amendment passes in its current form).
“Although there remains much in this bill with which to take issue, we thank Governor Baker for the common sense recommendation to raise the age of consent to abortion to 18,” said Patricia Stewart, executive director of Massachusetts Citizens for Life, in a written statement.
But pro-lifers are frustrated by the governor’s tacit support for removing language in current state law that requires doctors to try to save the life of a baby born alive after an attempted abortion. Current state law (Massachusetts General Laws, Chapter 112, Section 12P) requires that doctors try “to preserve the life and health of the aborted child,” but the abortion amendment would delete that language.
Instead, the abortion amendment would require that late-term abortions take place in a facility with “life-supporting equipment … to enable the physician performing the abortion to take appropriate steps … to preserve the life and health of a live birth and the patient.” Critics point out that the language doesn’t require a physician to use the equipment.
Baker ignored that issue in his letter to state legislators and raised no objections to deleting that language from the law.
Instead, Baker is proposing changes to the abortion amendment meant to underscore what he considers the gravity of abortions after 24 weeks.
Current state law allows abortions after 24 weeks “only if it is necessary to save the life of the mother, or if a continuation of her pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health.” (It’s Massachusetts General Laws, Chapter 112, Section 12M.)
The Legislature’s abortion amendment would alter the language of the current state statute, allowing such late-term abortions “if it is necessary, in the best medical judgment of the physician, to preserve the patient’s physical or mental health …” – where “patient” refers to a woman seeking an abortion.
Baker is proposing to change the language somewhere in the middle – allowing abortions after 24 weeks “if a continuation of the pregnancy will impose, in the best medical judgment of the physician, a substantial risk to the patient’s physical or mental health …”
Critics of the provision argue that mental health is not readily measurable, suggesting the law allows wide latitude for late-term abortions.
The governor’s letter also proposes adding consequences for violating the restrictions on late-term abortions, including fines and possible revocation of a doctor’s medical license.
The Massachusetts Senate and House of Representatives are not expected to take up business this weekend. The next session is scheduled for Monday, December 14.
