Decriminalizing Abortion and Safeguarding Access in Massachusetts

On July 18, 2018, the Massachusetts legislature passed long-proactive legislation to decriminalize abortion. This win is significant because it overturns archaic statutes that have been used to prosecute women who self-manage their own abortions. With this win, Massachusetts pushed back against a hostile anti-choice federal landscape, and laid the groundwork to push even further to enshrine the full range of protections for abortion access in Massachusetts law.

NIRH worked closely with Reproductive Equity Now Foundation (formerly NARAL Pro-Choice Massachusetts Foundation) on the effort to decriminalize abortion in Massachusetts, providing funding, communications support, and strategic guidance. We were proud to work closely with NARAL Massachusetts to get this bill across the finish line and will use this momentum to enact other policies necessary for Massachusetts to live up to its promise of a safe haven state for abortion access.

Why was abortion access not safe in Massachusetts?

Until July 2018, Massachusetts had criminal abortion laws on the books dating back to the 1800s, with little impetus to change them. These archaic 19th-century statutes criminalized abortion with stiff penalties, banned contraception for unmarried people, forbade distributing information about how to access contraception or abortion care, and even punished pharmacists, doctors, and other healthcare providers for distributing contraception or performing an abortion.

While some of these statutes have been addressed through court proceedings or in the passage of other bills, some could still be applied at prosecutors’ discretion. As recently as 2007, the archaic abortion law was misused to prosecute a woman for managing her own abortion using medication.

Their presence on the books in Massachusetts was also dangerous because they could spring back into effect if Roe were overturned– putting both pregnant people and health care providers at risk of criminal prosecution.

What is the bill and what does it do?

S.2260 keeps abortion legal in Massachusetts no matter what happens on the federal level, and protects safe and legal access to reproductive health care.  It removes all of the outdated and unconstitutional laws listed below:

• A criminal ban that carries stiff penalties for “procuring a miscarriage,” which is aimed at criminalizing clinicians who provide abortion care but could be misused against women who end their own pregnancies;
• A ban on unmarried people accessing abortion and contraception;
• A ban on distributing information about how to procure contraception or abortion care;
• A law prohibiting, at risk of criminal penalties, doctors, pharmacists, and all healthcare providers from distributing contraception or providing abortion care;
• A requirement that all abortions provided from the thirteenth week of pregnancy onward be performed in a hospital
• A ban on adultery;
• A ban on fornication.

What does it mean for those outside of Massachusetts?

By proactively protecting abortion access, Massachusetts has shown what is possible and necessary at the state level in the face of continued attacks from a hostile president, Congress, and Supreme Court. This is an illustration of NIRH’s core strategy –the best defense against a hostile federal administration is a strong state-level offense.  These states will become even more important for abortion access if Roe is overturned, by serving as “safe havens” for reproductive care for people from all around the country.