Jul 15, 2022 - News

Fatal fetal defect provision of Mass. abortion law under scrutiny

Illustration of the Massachusetts State House with lines radiating from it.
Illustration: Brendan Lynch/Axios

Massachusetts, a liberal bastion of reproductive health protections, has a gap in its abortion law.

Driving the news: Boston resident Kate Dineen, whose story was first told in the Boston Globe, tells Axios she had to go to Maryland for an abortion in July 2021 after her fetus had a grade 4 hemorrhage in utero.

  • She and advocates who helped write the state law say she should have qualified for an abortion in Massachusetts under the law's lethal fetal anomaly provision, but her doctors at Mass General Hospital said the fetal defect did not meet the hospital's threshold to be deemed lethal.
  • Dineen's experience has sparked a push to reexamine how the state law applies to late-term abortions involving fetuses with severe defects.

Details: Massachusetts codified abortion access in 2020, including for pregnancies after 24 weeks in cases of a fatal fetal anomaly, the fetus being "incompatible with sustained life" outside the uterus, or when it's necessary to preserve the mental and physical health of the pregnant patient.

  • Yes, but: Dineen, abortion advocates and nearly two dozen doctors say a lack of consensus on what constitutes a fatal anomaly is creating barriers to access the procedure.

Why it matters: Massachusetts leaders describe the state as a safe haven for patients seeking abortions, particularly in the wake of the U.S. Supreme Court reversing Roe v. Wade.

  • Yet abortion clinics and hospitals are accepting an influx of out-of-state patients at a time when the state lacks clear guidance on post-24-week abortions.

Zoom in: Dineen was excited to have a boy. She was 33 weeks pregnant when she was told the fetus had a "catastrophic" hemorrhagic stroke, but that it did not meet the hospital's definition of "lethal fetal anomaly."

  • Representatives for MGH did not respond to emails and calls seeking comment from Axios.

What they're saying: "I always felt so lucky to be in a blue state like Massachusetts, and before going through this, I had no idea that barriers to later abortion access existed here," Dineen tells Axios.

The gap in abortion access flies in the face of the spirit of the law, says Rebecca Hart Holder, executive director of the advocacy group Reproductive Equity Now.

  • Massachusetts doesn't collect data on how many pregnant people have traveled out of state for an abortion after being denied one at home, but the revelation that the law is being interpreted more narrowly than intended ​is raising red flags.

What's happening: Dineen and advocates like Holder say they want to see the law changed to incorporate "severe" fetal anomalies.

  • Twenty-three doctors from Boston-area hospitals, including MGH, Brigham and Women's Hospital and Boston Medical Center, signed a letter Tuesday backing legislation to update the law.
  • Advocates say hospitals are not allowing late-term abortions unless a fetal anomaly has a nearly 100% chance of being fatal, but doctors say it's impossible to determine such an exact likelihood. While advocates and legislators did not define "severe," they say updating the law would allow for abortions when there is a reasonable chance but perhaps not a guarantee that a fetal defect is fatal.

The latest: House lawmakers recently passed a bill including the word "severe" in the law's lethal fetal anomaly exemption.

  • The Senate opted not to add the word "severe" in a bill it passed Wednesday, for fear that Republican Gov. Charlie Baker will veto the bill when it reaches his desk, Sen. Cindy Friedman (D-Arlington) tells MassLive.
  • Instead the Senate bill attempts to give doctors more leeway in decision-making by including an amendment clarifying that if a doctor allows an abortion past 24 weeks, no medical review process can override their decision.

What's next: Lawmakers have two weeks to get a law passed if they want to clarify the provision, or else they'll have to wait until the next two-year legislative session starts in January.

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