Image from: “Our Bodies – Our Lives – Our Voices” by afagen is licensed under CC BY-NC-SA 2.0
By Kelley Huber, JHBL Staff Member
Massachusetts has long held out as a progressive haven – for example being one of the first states to legally recognize and codify same sex marriage within the state, and enacting groundbreaking healthcare policy reform. Yet, some Massachusetts laws involving gender equality have been on the books since English colonialism and were only repealed in 2018. While this could be credited towards a recognition that Massachusetts needs to modernize, much of the progress the Commonwealth has experienced has been a result of progressive resistance from the 2016 election. However, being so recently compelled to fight back means that the legislature is only now addressing systemic injustices that have been on our books for decades.
One of the biggest advances in reproductive healthcare the Commonwealth can embrace is the ROE Act (S. 1209, H. 3320), which is a colloquial name for the “Act to Remove Obstacles and Extend Abortion Access.” Introduced in 2019, the bill has two main objectives – to expand late term abortion care within the Commonwealth, and to expand abortion access for minors by removing the parental consent law which is currently not enforced but has been on the books since 1981. Both of these elements have been endorsed by a group called the ROE Act Coalition, a group of organizers, counsel, and professionals from the ACLU of Massachusetts, NARAL Pro-Choice Massachusetts, and the Planned Parenthood Advocacy Fund of Massachusetts.
The most contentious part of the ROE Act is the proposed elimination of parental consent, and in turn the judicial bypass process, for a minor seeking abortion care. Judicial bypass is a term created after the landmark case Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), in which the Supreme Court limited the scope of freedom to access abortion previously affirmed in 1973’s Roe v. Wade, 413 U.S. 113. In Casey, the Court opined that a state can curtail abortion access in the interest of the life of unborn persons but cannot create an undue burden for a person seeking abortion care. Within this opinion, the Court said that a state could not eliminate abortion access for minors seeking the procedure through a parental consent requirement. Under Casey, a state would need to create an avenue where a judge could to consent to a minor within their jurisdiction receiving an abortion. This avenue for an abortion without parental consent is what is now known as judicial bypass. Ironically, before justifying that states can require minors to obtain parental consent from one or both parents, Justices O’Connor, Kennedy and Souter wrote that “[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”
Nationwide, 37 states still use judicial bypass in some capacity. Surprisingly, states which had formerly codified laws that were silent on parental consent in abortion for minors are now implementing such statutes. The most recent state to adopt such legislation is Florida. Florida Senate Bill 404, which requires two-parent consent and notice for minors seeking abortion, sailed swiftly to approval in the Republican-majority state House and Senate in February 2020. It is expected that Governor Rick DeSantis will sign the bill into state law. In codifying this law, Florida would become the sixth state to use such draconian measures in managing abortion care for minors, joining Oklahoma, Wyoming, Texas, Virginia, and Utah. The American Association of Pediatrics found in 2017 that teens facing an unplanned pregnancy usually involved a parent on their own behalf. But those who chose not to involve a parent usually credited their choice to fear of coercion or conflict from their parent.
The ripple effect of maintaining judicial bypass procedures is a slippery slope for the fundamental rights of minors. A minor does not need any parental consent to have an ultrasound, attend prenatal appointments, or receive medicine and related treatments for diagnoses of sexually transmitted infections. However, many minors resist obtaining parental consent for their abortion procedures because of ripple effects in healthcare costs, proof of identification, and insecure immigration status. Furthermore, some states continue to send explanations of benefits, or forms summarizing the services used on a policy holder’s insurance plan, to the policy-holding parent or parent’s employer in lieu of the minor patient. Here, judicial bypass on its own can negate a minor’s right to privacy, despite being affirmed to all patients seeking an abortion under Roe v. Wade.
While judicial bypass satisfies the Casey standard, current data still shows that its implementation regularly and systemically creates burdens for teens who use the procedure as part of choosing to pursue an abortion in Massachusetts. A 2019 study showed that on average, teens who followed the judicial bypass process were delayed 14 days in having an abortion procedure. This delay was due to a number of factors, including scheduling conflicts with school and work, conflicts with the judge who was assigned to the minor’s petition, and struggles with securing transportation to and from courthouses. In addition, studies have illustrated that the rates of minors seeking abortion care by traveling outside of Massachusetts rose 300% since the implementation of the parental consent requirement.
By creating such a delay for teens seeking the procedure, a teen seeking abortion care may be completely boxed out of choosing their method of abortion simply because of scheduling. Medication abortion, where a clinician guides the dosage of misoprostol and mifepristone at the patient’s time and place of choosing, can only happen within the first ten weeks of pregnancy. Otherwise, a patient can only receive abortion care within a clinic that can perform the procedure. Data from a 2016 Harvard Medical School study showed that these practices consistently result in disparate outcomes for teens of color and immigrant minors.
Progress is still possible in Massachusetts. In February 2020, the Massachusetts State Senate extended the response period to the bill filing to May 2020. This is promising news because of the time being taken to consider the bill on its own integrity and not in the wake of the March 2020 presidential primaries. While the State Legislature ends its 18-month session in July 2020, co-sponsors of the ROE Act are working hard in their communities to ensure that reproductive healthcare is not left to the wayside in a divisive political climate. Representative Maria Robinson, D-Framingham, recently said at a community forum on the bill that “[i]f we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. . . [access to abortion care] should not be seen as a privilege or benefit but a fundamental human right.”
Sources
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Roe v. Wade, 413 U.S. 113 (1973)
Am. Ass’n of Pediatrics Committee on Adolescence, The Adolescent’s Right to Confidential Care When Considering Abortion, 139 PEDIATRICS 2 (2017), available at https://pediatrics.aappublications.org/content/pediatrics/139/2/e20163861.full.pdf
https://malegislature.gov/Bills/191/H3320/BillHistory
https://malegislature.gov/Bills/190/S2260/BillHistory?pageNumber=2
https://www.cnn.com/2020/02/21/politics/florida-abortion-parental-consent/index.html
https://malegislature.gov/Bills/190/SD1174.Html
https://www.plannedparenthood.org/learn/abortion/the-abortion-pill/how-does-the-abortion-pill-work
https://www.masslive.com/politics/2018/07/lawmaker_send_bill_eliminating.html
Kelley Huber is a second-year law student at Suffolk University Law School. Her research interests include employment discrimination, reproductive justice, and gender equality issues. Outside of law school, she is an active volunteer and speaker with the Planned Parenthood Advocacy Fund of Massachusetts. She holds a bachelor’s degree from the University of Connecticut. She can be reached at khuber2@su.suffolk.edu.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.