My Turn: On the ROE Act now under consideration

Published: 11/22/2020 3:00:05 PM
Modified: 11/22/2020 2:59:49 PM

The Massachusetts House and Senate have just passed amendments to the annual budget bill that cover much of the same ground as the so-called Roe Act, which was never reported out of committee. They will now go to a conference committee to work out the differences, and then to the governor, who can veto the ROE Act provisions separately from the budget.

Like the ROE Act, these amendments relax statutory restrictions on abortions after 24 weeks gestation, and although they are substantially less extreme than the ROE Act, especially in the House version, they are still bad enough to justify people contacting their representatives and the governor to urge a veto or at least that the House rather than the Senate version be incorporated into the conference bill.

Since the Judiciary Committee never reported on the original bill, it never went through the ordinary scrutiny and amendment process. Instead, the legislative leadership allowed ROE Act provisions to be added to the budget bill only a few days before the vote without any committee review. There was only a very short floor debate in each chamber, which was mostly taken up with rhetorical grandstanding.

As most people presumably know by now, under Massachusetts law, an unborn child capable of living outside the womb is a person with the same fundamental rights as anyone else. Termination of pregnancy after 24 weeks is only permitted if continuation of the pregnancy would substantially endanger the mother’s health, and the termination procedure must be performed in such a way as to save the unborn child’s life unless doing so would cause serious physical injury to the mother.

Deliberately killing an unborn child after viability, except as the unintended and unavoidable consequence of a medical procedure, constitutes homicide as well as a violation of the abortion statute.

The original ROE Act bill was so badly drafted that it was hard to interpret, but seemed to be intended to authorize deliberately killing a viable fetus either if the fetus had a congenital defect that could lead to premature death, or if the doctor believed that having a child would undermine the mother’s health, which was defined to include various non-medical elements including any factor affecting her “well-being.”

The House version of the budget bill has eliminated the provision authorizing a post-24-week abortion on the grounds of a life-shortening congenital defect. Under the House version, in order to justify killing a viable fetus, it must have a defect “that is incompatible with sustained life outside the uterus.”

The Senate version, however, retains the original ROE Act language, which would probably be interpreted to include conditions that could be effectively treated, that would be compatible with months or years of life, or that cause death in only a fraction of cases. We should urge our representatives and senator to try to get the House version into the conference bill.

In regard to abortion after 24 weeks to protect the mother’s health, both the House and Senate budget amendments have eliminated the references to the mother’s “well-being” and the enumeration of non-medical factors the doctor may consider. They have also retained a current statutory requirement that the doctor have equipment on hand to save the child’s life, which the original ROE Act bill would have repealed.

However, both the House and Senate versions would repeal the current statutory requirement that the doctor protect the child before and during the abortion procedure, as well as the requirement that the maternal health risk be related to “continuation” of the pregnancy. The net effect of these changes seems to be intended to authorize a doctor to perform a post-24-week abortion for the specific purpose of killing the child, on the basis of a belief that the child’s survival would endanger the mother’s health, and would only require the child’s life to be saved if it were inadvertently delivered alive.

That’s how a very similarly worded Maryland statute works in practice. As a humane society, we cannot allow one person to be killed because its existence would impose a burden on someone else. I think this provision demands a veto.

The other major provisions of the budget amendments have to do with lowering the presumptive age of consent to abortion from 18 to 16 and modifying the judicial procedure for determining capacity for girls under 16. Those issues have not suddenly become more urgent, and should not be used to put pressure on the governor to sign the post-24-week provisions.

John Harrington is resident of Shelburne.

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