Around New England

Opponent’s New Legal Analysis of Proposed ROE Act Abortion Bill Troubled by Undefined Terms, Changes in State Law

July 3, 2019

A legal analysis of the proposed ROE Act abortion bill in Massachusetts published by an anti-abortion group this week finds that the bill would effectively remove all restrictions on late-term abortions and would remove all protection in current law for a baby born alive after an attempted abortion.

The anti-bill analysis focuses on terms in the bill that aren’t defined.

Current state law theoretically bans abortions after 24 weeks, but provides exceptions if an abortion is deemed “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.”

The ROE Act bill (Massachusetts House Bill 3320) would get rid of the grave-impairment language, which Mary E. Harned, an associate scholar with Charlotte Lozier Institute, a pro-life group headquartered in Arlington, Virginia, finds disturbing.

“While a health exception, particularly a mental health exception, can be exploited to permit an abortion for any reason, the current requirement that there be a ‘substantial risk of grave impairment’ should discourage some abortion providers from breaking the law,” writes Harned, a lawyer, in a legal analysis published Monday, July 1. “Conversely, the removal of this language through HB 3320 would invite abortion providers to justify late-term abortions for any reason, even family pressure or age.”

The letters in the ROE Act bill stand for Remove Obstacles and Expand Abortion Access, and call to mind the 1973 U.S. Supreme Court decision Roe v. Wade, which legalized abortion nationwide.

Supporters say abortions after 24 weeks should be easier to get in Massachusetts than they are now because women whose fetuses have fetal abnormalities expected to result in quick death after birth should have the option of aborting their fetuses when such conditions are discovered late in pregnancy. The ROE Act bill would allow abortions after 24 weeks when “the abortion is necessary to protect the patient’s life or physical or mental health, or in cases of lethal fetal anomalies, or where the fetus is incompatible with sustained life outside the uterus.”

But Harned notes that the terms “lethal fetal anomalies” and “sustained life” aren’t defined in the bill.

“A ‘lethal fetal anomaly’ or condition ‘incompatible’ with ‘sustained life’ could be a treatable but ultimately life-limiting condition, like cystic fibrosis or a heart defect associated with Down syndrome,” Harned writes. “The bill also does not specify if ‘sustained life” refers to life sustainable with or without intervention. If an infant would need dialysis while awaiting a kidney transplant, would that justify a late-term abortion? How long would a life need to be sustainable to receive protection?”

Opponents of the bill have zeroed in on its proposed removal of a requirement in current Massachusetts law (Massachusetts General Laws, Chapter 112, Section 12P) that a doctor who performs an abortion “shall take all reasonable steps … to preserve the life and health of the aborted child,” which refers to babies born alive after an attempted abortion.

Some supporters of the bill have questioned whether babies are ever born alive after an attempted abortion – though opponents of the bill have cited specific examples. Some supporters of the bill have said it’s unnecessary to have the state’s abortion statute mention born-alive babies, arguing that killing a baby after birth is illegal in Massachusetts whether abortion law mentions it or not.

Harned mentions the ROE Act bill’s proposed removal of the preserve-the-life portion of current state law, noting “this provision requires the abortion provider to attempt to save the unborn child in a late-term abortion, particularly if the child is born” (emphasis in original).

Harned’s article is called “Massachusetts HB 3320:  Sweeping Away Commonsense Protections for Women and Children.”

Jim Lyons, chairman of the Massachusetts Republican Party, said state legislators ought to consider Harned’s article before making up their minds to support the ROE Act bill.

“Every member of the state Legislature needs to read this analysis,” Lyons said in a written statement Tuesday, July 2. “Every member of the state Legislature should know the facts before even considering voting in support of this dangerous proposal.”

Lyons has hit the ROE Act bill hard, calling it legalized infanticide and spending party money on social media criticisms of state legislators who are sponsoring the bill.

This week he noted that the first witness called by the Massachusetts Legislature’s Joint Committee on the Judiciary who testified in favor of the bill during the committee’s hearing Monday, June 17 didn’t appear to know about the bill’s removal of legal protection for born-alive infants who survive an abortion.

When asked about it by state Representative Sheila Harrington (R-Groton), Dr. Carole Allen, vice president of the Massachusetts Medical Society, which supports the bill, replied, “I’m sorry, I’m not familiar with that particular section that you’re reading into.”

Lyons said in a written statement that that answer proves the need for state legislators to read Harned’s article.

 “That was a dangerous example of ignorance,” Lyons said, referring to Allen. “The fact that the Massachusetts Medical Society was somehow unaware of the most radical provision tucked inside of this bill underscores the need for this in-depth analysis.”