BOSTON — Right-to-lifers in Massachusetts plan to start gathering signatures next week to try to bring a born-alive ballot question to voters next year, now that the state’s highest court has allowed them to start the process.

The petition is a long way from success: It’s not clear whether the court will allow it to go forward over the objections of the state attorney general, whether supporters will get signatures from more than 80,000 registered voters by the Nov. 17 deadline, or whether, if they manage that, they’ll get an additional 13,000-plus signatures by next July.

But win, lose or stymied, supporters say it’s an example of what pro-lifers can do in a pro-abortion state.

Efforts in jurisdictions where pro-life support is stronger include bills filed in state legislatures designed to work around the edges of abortion without taking it on directly, as recent anti-abortion statutes passed in Texas and Mississippi do. 

While some legal analysts think these recent strong restrictions in pro-life states eventually could induce the U.S. Supreme Court to strike down Roe v. Wade, the 1973 decision that legalized abortion nationwide, abortion opponents in abortion-friendly states tend to look for more indirect approaches.

In Delaware, a bill filed in April would require doctors who provide abortions to offer a pregnant woman an ultrasound image of her unborn baby before performing the abortion. In Maine, a bill filed in March would require doctors to tell women considering a chemical abortion that it may be possible to reverse the effects of an abortion pill if tried early enough. Born-alive bills — such as those filed earlier this year in state legislatures in Rhode Island and Illinois — would require doctors to attempt to save the life of a baby born alive after an attempted abortion.

These bills aren’t going anywhere, because a majority of legislators in those states have no interest in advancing them. But they serve a purpose, said Carol Tobias, president of the National Right to Life Committee.

“At least the bill is sitting there. It has been introduced, and it can be used to educate voters about how crazy and radical their legislators are,” Tobias said in a telephone interview with the Register. “It’s the other side that’s radically extreme. They want abortion for all nine months, for any reason. And these kinds of legislation, it’s a great way to point out that this is happening in our state.”

 

‘The Cradle of Death’

In Massachusetts, however, pro-lifers are trying to go around the Bay State Legislature and directly to the people. They are reacting to an abortion-expansion bill enacted shortly after Christmas 2020 that opponents describe as extreme even for left-leaning Massachusetts. (To make the bill law, legislators overrode a veto by Gov. Charlie Baker, a Republican who supports legal and publicly funded abortion.)

The bill, known as the ROE Act, lowered the age when girls need consent from a parent or judge to get an abortion from 17 to 15. It also explicitly allowed abortions after 24 weeks in cases where an unborn baby has been diagnosed with a fatal condition.

But the part that drew the strongest reaction was the elimination of a provision in state law that required that doctors “take all reasonable steps … to preserve the life and health of the aborted child” if a baby somehow survives an attempted abortion.

The Massachusetts Legislature meets on Beacon Hill in Boston, the state capital, sometimes called the “Cradle of Liberty” because its residents resisted British government policies during the 1770s and sparked the American Revolution. That suggests to one pro-life activist a grim irony.

“The Cradle of Liberty has become the cradle of death,” said Bernadette Lyons, who chairs the Massachusetts Newborn Protection Coalition, which organized the born-alive petition, in a telephone interview. “It’s really a scary thing to say that legislators on Beacon Hill would sit down and say this is a good law. It’s incredible to me, and very troubling and saddening.”

Supporters of the bill last year tended to focus on fatal fetal anomalies, and to a lesser extent on parental consent, regarding which they argued a girl old enough to have sex legally (the age of consent is 16 in Massachusetts) shouldn’t need to get an abortion. But some also defended removing the born-alive provision, saying it needlessly tied doctors’ hands in cases where a recently born baby wasn’t expected to live long.

 

The Pro-Life Petition

The former born-alive provision of Massachusetts state law stood for 47 years. It’s not clear whether it ever came into play, as there are no publicized cases in the state. But supporters of it point to the public testimony of adults from elsewhere who say they survived an attempted abortion.

The petition, called “A Law to Preserve the Lives of Children Born Alive,” consists of 36 words: “Notwithstanding any general or special law to the contrary, if a child is born alive, all reasonable steps, in keeping with good medical practice, shall be taken to preserve the life of the child born alive.”

Maura Healey, the state attorney general, recently rejected the petition, saying its wording is too vague and that under the state constitution it would need to include an enforcement mechanism in order to go to the voters.

“Considering the omissions and unresolvable ambiguities described above, we cannot determine with certainty what the proposed law means or would do,” states a letter signed by Anne Sterman, deputy chief of the government bureau of the Massachusetts Attorney General’s Office, dated Sept. 1.

The Massachusetts Supreme Judicial Court on Thursday, Sept. 9, issued a preliminary injunction allowing petition supporters to gather signatures but has not yet ruled on the substance of their appeal.

Healey is a supporter of the ROE Act and a critic of a new statute in Texas that outlaws abortions after six weeks of pregnancy. She has also spoken out against attempts in other states to limit or prohibit abortion.

Healey has not commented publicly on the Massachusetts born-alive petition, though she has said that her office’s decisions to approve or reject initiative petitions are based on the state constitution and not on her personal policy preferences.

Supporters of the born-alive petition have criticized Healey, saying that the petition isn’t vague, that it shouldn’t require an enforcement mechanism, and that Healey’s decision is based on politics instead of the law.

“She’s an outspoken advocate of NARAL and Planned Parenthood, and she just gave this to her supporters, which is so unfortunate,” said Jim Lyons, chairman of the Massachusetts Republican Party (and the husband of Bernadette Lyons), in a telephone interview.

A spokesman for Healey declined comment.

Spokesmen for NARAL Pro-Choice Massachusetts and Planned Parenthood could not be reached for comment.

Lyons called removing born-alive language from state law “a major overplay of their position” that presents an opportunity for pro-lifers.

“It really gives us a chance to bring this issue front and center: Should we or should we not give medical care to babies born alive? And I think that resonates, across the board,” he said.

 

Abortion-Friendly Landscape

The original born-alive provision in state law was enacted as part of a wider abortion-restriction bill in August 1974, a year and a half after the U.S. Supreme Court legalized abortion nationwide through Roe v. Wade and its companion case, Doe v. Bolton.

Since then, the state has become much more abortion-friendly. In 1981, the Massachusetts Supreme Judicial Court ruled that that state government must pay for abortions for poor women through its Medicaid program, as it does today — spending a little more than $2 million last year. State legislators in July 2018 repealed several former anti-abortion statutes. And while polls suggest voters are skittish about late-term abortion, a solid majority say they want the vast majority of abortions to remain legal.

That’s why pro-lifers in recent years have tended to focus on around-the-edges issues such as parental consent and public funding of abortion.

“In Massachusetts, where liberal legislators outnumber conservatives by 4 to 1, education is the key to overcoming the pervasive culture of death. By filing legislation that nibbles incrementally at all aspects of abortion, we are able to educate the unknowing and misled about the miracle and sanctity of all life,” said Patricia Stewart, executive director of Massachusetts Citizens for Life, in an email message.

Even if the Massachusetts Supreme Judicial Court allows the born-alive petition to go forward, supporters have a daunting task ahead. While well-funded campaigns often pay people to collect signatures, shoestring pro-life campaigns depend on volunteers.

Thomas Harvey led efforts in 2015, 2017 and 2019 to get a ballot question before voters that would start a process to stop public funding of abortion in the state. Each time the signature gathering fell short.

But Harvey, who is also a signer of the born-alive petition this year, thinks the effort itself is worth it.

“How can we advance the ball in Massachusetts on the abortion issue? I think there should be something in the works, something on the burner, all the time. Because if you don’t try, the status quo will just stay forever,” Harvey said in a telephone interview. “Somebody’s got to do something.”

Register correspondent Matt McDonald is the editor of New Boston Post.