Abortion rights are protected in Massachusetts — or so we thought

And then we read Supreme Court Justice Samuel Alito’s leaked draft.

By Nancy Gertner and John Reinstein

May 17, 2022

Click here to read on the Boston Globe's website

We were smug. We thought that the right to choose abortion was protected in Massachusetts no matter what the US Supreme Court did. The Supreme Judicial Court, the state’s highest court, said as much. In the 1981 case Moe v. Secretary of Administration and Finance, the SJC held that the right to choose abortion was protected under the Massachusetts Constitution. We represented the plaintiffs, indigent women who needed abortions because pregnancy posed substantial risks to their health and who relied on public funds for their care. You had a right to abortion, the US Supreme Court said, but the federal government didn’t have to pay for it. In a 6-1 decision, with justices selected by Republican and Democratic governors, the SJC disagreed: The Commonwealth had to fund medically necessary abortions, even if the federal government did not.

Why? Because the Massachusetts Constitution protected an individual’s right to choose in no uncertain terms. It included the right to be free from government intrusion into the decision “whether to bear or beget a child,” a decision involving “the most intimate of human activities and relationships.” It defined a right to privacy that covered more than abortion. There was a “private realm of family life which the state cannot enter,” as the SJC described in a 1944 case about a parent’s choice of religious training for their children. It covered “the sanctity of individual free choice and self-determination,” as the court described its 1977 case about a citizen’s right to refuse life-prolonging treatment.

Not only did the refusal to fund abortion violate the state privacy right, but it also violated state equal protection and the equal rights amendment. Here too our constitutional protections were broader than federal ones, from the Quock Walker cases of 1783, in which the SJC announced that slavery was inconsistent with the state constitution, to the SJC’s 2003 decision in Goodridge v. Department of Public Health, which guaranteed same-sex couples the right to marry — long before the US Supreme Court did, in 2015.

Massachusetts was not alone. Numbers of state high courts agreed that their constitutions covered the right to an abortion (including Alaska, California, Kansas, Minnesota, and Montana), even requiring the state to pay for an indigent woman’s abortion (Alaska, Arizona, and New Mexico).

Protection for abortion rights was a mainstream, secure constitutional principle, at least in Massachusetts — or so we thought.

Then we read Justice Samuel Alito’s draft opinion in the case of Dobbs v. Jackson Women’s Health — with its cavalier rejection of precedent, its dismissal of a right to privacy, its throwback interpretation of equal protection. We watched the anti-women legislative proposals it unleashed nationwide. Now we are worried. The only rights that matter, according to the draft, are those “enumerated” in the Constitution or “deeply rooted in [our] history and tradition.” Women’s rights were irrelevant to the Constitution’s drafters because women were irrelevant. The 18th-century US Constitution was drafted when married women could not own property, were barred from certain professions, and had no civil or political rights.

Even after the Civil War, when pro-Union women activists lobbied to vote, they were ignored; 19th century laws criminalizing contraception were part of those traditions, often justified to ensure “that women performed their duties as wives and mothers.”

Worse, almost two years after Justice Ruth Bader Ginsburg’s death, Alito stomps on her legacy. Prohibiting abortion, he said, did not violate federal equal protection (his argument was based on a 1974 Supreme Court decision from an all-male court, which was reversed by legislation and discredited in decisions Ginsburg authored). Discrimination against pregnant women was not sex discrimination; it just distinguished between “pregnant women,” an all-female group, and “nonpregnant persons,” a group that included men. The reasoning was absurd. Pregnancy discrimination and abortion restrictions, Ginsburg insisted in a decision she wrote for the court, violated equal protection by undermining “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”

True, a state constitution can offer greater protection than the federal constitution. True, Alito’s draft urges that abortion regulation be left to state legislatures. True, the Massachusetts Legislature can’t take back the right to choose any time soon without amending our constitution, which would be an uphill battle.

Congress is another matter. A Republican Congress could prohibit abortion; if it did, the US Constitution’s supremacy clause would give federal law priority, extinguishing Massachusetts’ constitutional protections. If you think Alito’s reasoning stops at abortion, not same-sex marriage or birth control, we have a bridge to sell you.

Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard Law School. John Reinstein is retired legal director of the ACLU of Massachusetts.