State Senate Passes Bill Protecting Reproductive and Gender-affirming Care

BOSTON — On July 13, the Massachusetts State Senate unanimously passed a bipartisan bill protecting providers, residents, and visitors to the Commonwealth who engage in legally protected reproductive and gender-affirming healthcare.

“An Act Expanding Protections for Reproductive and Gender-affirming Care” includes provisions preventing the Commonwealth’s cooperation with ‘bounty-style’ anti-abortion and anti-gender-affirming care laws in other states, mandates health-insurance coverage for abortion and abortion-related care with no cost sharing, ensures access to emergency contraception, and provides confidentiality to providers of reproductive and gender-affirming care.

With a version of a bill expanding protections for reproductive and gender-affirming care having passed both branches of the Legislature, a conference committee will be appointed to resolve differences between the bill’s two versions.

“We cannot let other states threaten Massachusetts pregnant and transgender people or the providers who take care of them,” said Senate President Karen Spilka. “Massachusetts will not waver in protecting our residents’ rights. The Legislature prepared for the end of Roe v. Wade by passing the ROE Act in 2020, which ensured the continuation of reproductive healthcare services when we could no longer count on the federal government. Now, we must prepare our Commonwealth for the potential further erosion of our rights and protections at the federal level. I want to thank my colleagues in the Senate for their swift and decisive action.”

The bill, filed by state Sen. Cindy Friedman, expands on her amendment to the Senate FY 2023 budget, which was filed in response to the leaked U.S. Supreme Court opinion on Dobbs v. Jackson and adopted by the Senate in late May.

Friedman, Senate chair of the Joint Committee on Health Care Financing and the lead sponsor of the bill, called the legislation “a monumental step forward in Massachusetts, as we are seeing increasingly more anti-abortion and anti-gender-affirming care legislation rise across the country. We must do everything to protect the rights of our providers, patients, and visitors to the Commonwealth. As we further realize the impact of the U.S. Supreme Court’s decision in Dobbs v. Jackson in our Commonwealth, we will continue to fight these attacks on reproductive and gender-affirming care with meaningful action.”

State Sen. Adam Gomez added that the bill sends a clear message: “we will not let the rights of pregnant or transgender people be threatened in our state. The decision handed down a few weeks ago from the United States Supreme Court means the criminalization of a deeply personal healthcare decision made between a child-bearing person and their doctor. This criminalization will disproportionately impact low-income communities, communities of color, and single parents. This legislation will ensure that these vulnerable groups will not have to worry in our state when it comes to their reproductive health.”

Under the legislation, physicians, nurses, physician assistants, pharmacists, psychologists, genetic counselors, and social workers are insulated from legal action in Massachusetts courts as a result of providing healthcare services that are legal in Massachusetts. This language specifically protects reproductive and gender-affirming healthcare, which has been the target of laws passed in states like Texas and Oklahoma that seek to limit this critical care beyond their states’ borders. This bill also allows anyone who faces abusive litigation in another state for providing legally protected reproductive and gender-affirming care services to sue in Massachusetts court to obtain a judgment, including actual damages, expenses, costs, and reasonable attorney’s fees.

The governor would be prevented under the legislation from extraditing someone to another state to face charges for an abortion, gender-dysphoria treatment, or another protected service, except when required by federal law or unless the acts forming the basis of the investigation would also constitute an offense if occurring entirely in Massachusetts. Law-enforcement agencies in Massachusetts would also be prohibited from assisting any investigation by federal authorities, another state, or private citizens related to legally protected reproductive and gender-affirming healthcare provided in the Commonwealth.

Courts would similarly be barred from ordering anyone in Massachusetts to testify or produce documents for lawsuits involving those practices, and judges could not issue any summons in a case concerning those healthcare services unless the offense in question would also violate Massachusetts law.

An amendment was adopted during debate requiring public higher-education institutions to work with the Department of Public Health (DPH) to create a medication-abortion readiness plan which must provide medication abortion at a health center on campus or provide a referral to a nearby healthcare facility offering abortion care. It also creates a trust fund for public higher-education institutions to support the implementation of their medication-abortion readiness plans.

In response to stories about women not receiving access to abortion care in Massachusetts currently allowed under the existing state law, an amendment was adopted to clarify the circumstances that treating physicians must consider when determining whether to provide later-in-pregnancy abortion care. The amendment requires such determinations to be made by the treating physician and patient. To ensure hospitals are complying with the law, the amendment also requires healthcare facilities providing these services to file their procedures and processes for providing services consistent with the law with DPH.

Additional amendments would identify areas of the state with limited abortion access to increase care to those areas and allow pharmacists to prescribe and dispense hormonal contraceptive patches and self-administered oral hormonal contraceptives. The bill implements a statewide standing order to ensure that emergency contraception can be dispensed at any pharmacy in the Commonwealth.

In addition, the legislation requires the Group Insurance Commission and commercial health-insurance carriers to cover abortions and abortion-related care and ensure Massachusetts patients are not charged a cost-sharing amount, such as deductibles, co-payments, or similar charges, for such coverage. It also requires MassHealth to cover abortion and abortion-related care and ensures enrollees are not charged a cost-sharing amount for prenatal care, childbirth, postpartum care, abortion, or abortion-related care.

The bill also allows individuals engaged in the provision, facilitation, or promotion of reproductive and gender-affirming healthcare to enroll in the Secretary of the Commonwealth’s Address Confidentiality Program. This action will increase the safety of those who may face threats or violence outside of the workplace in their personal lives or at their residences.