Chronicling the next chapter in America's battle over abortion rights.
By Stephanie Ebbert, Globe Staff

New England states scramble to protect abortion providers from red-state prosecutions 

In a post-Roe America, could Massachusetts serve as a safe harbor for people from states that ban abortion?

It’s an open legal question, as advocates and policymakers try to anticipate a landscape reshaped by state-by-state abortion bans and unorthodox citizen-enforcement of the sort that was permitted by Texas’ SB8.

The Massachusetts Senate delved into that topic this week, passing an amendment that aims to protect those who perform both abortions and gender-affirming care from being prosecuted in states that may try to restrict such procedures.

Massachusetts clinicians have already put themselves out there, regularly traveling to Mississippi — whose state law just may successfully topple Roe — to perform abortions, as my colleague Hanna Krueger explored on Sunday. But moves by red states have raised the specter of abortion providers facing legal consequences for performing abortions in the future, even in Massachusetts, on patients from states that prohibit it.

The Senate amendment aims to protect them from penalties, spikes in medical insurance, and from being extradited to states that would seek to punish Massachusetts-based providers.

But it’s less sweeping than the law enacted this month in Connecticut, which also seeks to protect abortion patients from prosecution. Massachusetts may not be able to protect someone who flees a state that cracked down on abortion to have the procedure here, lawmakers and legal analysts said.

The Connecticut approach raised constitutional concerns, Senator Cindy F. Friedman told my colleague Matt Stout.

“When we looked at that, we realized there would be some significant issues around constitutional rights, the full faith and credit clause of the constitution,” said Friedman, who proposed the amendment.

That clause says states must respect judgments from other states, “but we don’t have to make it easy,” Friedman said.

Her amendment would shield Massachusetts law enforcement agencies from having to cooperate with federal or other states’ investigations into abortion or gender-affirming care — and prevent Massachusetts courts and judges from compelling people in Massachusetts to give testimony or produce documents in an abortion-related case.

Jessie Rossman, managing attorney with the ACLU of Massachusetts, told me that there are limits to what Massachusetts can and can’t control.

“The aim with this piece of legislation is for Massachusetts to do everything that is within its power to protect people from abusive litigation that could be coming out of states that are hostile to access to this medical care,” Rossman said. “Essentially, state leaders are saying that Massachusetts is not going to stand by while extremists try to deprive people in Massachusetts of their civil rights.”

The amendment cleared the Senate Thursday and was expected to be passed as part of the chamber’s budget on Thursday. It would still require approval from the House and Governor Charlie Baker, who says that he supports abortion rights but who vetoed the abortion rights package the Legislature passed in 2020, after taking issue with certain provisions, including lowering the legal age to 16.

That so-called “ROE Act” also created a new exception in Massachusetts law, allowing abortions after 24 weeks in cases of fatal fetal anomalies. But as my colleague Shirley Leung explored, a patient with a grim prognosis can still be thwarted from getting an abortion in Massachusetts. Reproductive rights advocates are also working to clarify that language and hospitals’ guidance to ensure future access.  

The last abortion clinic in Mississippi only employs out-of-state doctors. Two are from Massachusetts, including Dr. Cheryl Hamlin, left. Earlier this month, she stood outside the Pink House, a 27-year-old Jackson institution, with a team of volunteers stationed to protect staff and patients from anti-abortion protestors.

What I’m reading this week

Here’s an interesting piece from Vice on the nexus between anti-trans and anti-abortion measures in certain states.  

And here’s a look at how Democratic leaders who are now decrying the anticipated abortion changes, backed an anti-abortion incumbent over an abortion-rights candidate in a hotly disputed Texas Congressional race.

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