Born-Alive Petition Supporters To State’s Highest Court:  Flip Attorney General’s Rejection

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Supporters of a born-alive initiative petition are appealing the Massachusetts Attorney General’s rejection of their petition to the state’s highest court.

A lawyer representing the Massachusetts Newborn Protection Coalition and 10 signers of the petition filed a complaint in court on Tuesday, September 7.

The Massachusetts Supreme Judicial Court could issue an injunction that would allow supporters to gather signatures from registered voters right away, while the court considers the appeal.

Time is of the essence for supporters of the petition. To get a ballot question before voters in November 2022, supporters of initiative petitions must (among other things) gather and file at least 80,239 signatures by November 17, 2021. That’s about two months 10 days from now.

The petition, called “A Law To Preserve the Lives of Children Born Alive,” consists of 36 words:


Notwithstanding any general or special law to the contrary, if a child is born alive, all reasonable steps, in keeping with good medical practice, shall be taken to preserve the life of the child born alive.


Last week, Massachusetts Attorney General Maura Healey rejected the petition for the 2022 state ballot.

A lawyer who works for the Attorney General’s office cited what she called “several highly ambiguous provisions” in the petition, and she noted that “the proposed law does not provide any means for its enforcement.”

“Considering the omissions and unresolvable ambiguities described above, we cannot determine with certainty what the proposed law means or would do,” states a letter signed by Anne Sterman, deputy chief of the government bureau of the state Attorney General’s office, dated Wednesday, September 1.

Supporters of the petition say it’s not ambiguous, and they disagree with the Attorney General’s office’s argument that the petition must state an enforcement mechanism.

As of late Tuesday night, it’s not clear when the seven-member court will consider the case.

The petition seeks to restore a provision in state law that required doctors to try to save the life of a baby born alive after an attempted abortion.

The law (which was Massachusetts General Laws, Chapter 112, Section 12P) stated that for abortions performed after 24 weeks “the physician performing the abortion shall take all reasonable steps, both during and subsequent to the abortion, in keeping with good medical practice, consistent with the procedure being used, to preserve the life and health of the aborted child.” It also stated:  “Such steps shall include the presence of life-supporting equipment, as defined by the department of public health, in the room where the abortion is to be performed.”

The ROE Act abortion expansion bill, which the state Legislature enacted over Governor Charlie Baker’s veto in late December 2020, removed that born-alive provision from state law. All Republicans in the state Legislature voted No on the bill except for one. Sixteen Democrats in the House also voted No, along with four Democrats in the state Senate.

The previous born-alive provision in state law stems from a statute the Massachusetts Legislature enacted in 1974, about a year and a half after the U.S. Supreme Court legalized abortion nationwide with its Roe v. Wade decision in January 1973. The Massachusetts bill was called “An Act To Protect Unborn Children and Maternal Health Within Present Constitutional Limits.”

Governor Francis Sargent (1915-1998), a Republican, vetoed the bill on August 1, 1974.

Both chambers of the Massachusetts Legislature voted to override the governor’s veto on August 2, 1974.

Democrats outnumbered Republicans that year 186 to 52, or more than three-and-a-half to one. (At the time, the House had 240 members; it currently has 160.)

The born-alive provision in Massachusetts state law existed for 47 years and almost five months.


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