BY LEDA ANDERSON, JD, DIRECTOR, ADVOCACY AND GOVERNMENT RELATIONS
In a post-Dobbs America, when states across the country are rushing to severely restrict or outright prohibit access to abortion, Massachusetts continues to be a leader in reproductive health care. The Massachusetts Medical Society was proud to help craft provisions of and advocate for the passage of Chapter 127 of the Acts of 2022, An Act Expanding Protections for Reproductive and Gender-Affirming Care.
This act, which was signed into law in July, establishes legal and professional protections for providers of reproductive and gender-affirming health care services. The law also protects patients who travel to Massachusetts to access those services and aims to expand access to abortion services.
The law expands on and codifies into law the provisions from Governor Charlie Baker’s Executive Order No. 600, Protecting Access to Reproductive Health Care Services in the Commonwealth, which was issued on the day the Dobbs decision that overturned Roe v. Wade was released and sought to expeditiously protect health care professionals providing reproductive health services in Massachusetts by establishing certain legal and professional protections.
The MMS was at the table with key stakeholders, providing appropriate language in drafts of the law, offering expertise of physician specialists, and working closely with legislative leadership to forge compromises and advocate for the bill’s passage.
Legal and Professional Protections for Physicians and Other Care Providers
The legal protections attempt to shield physicians and other care givers from legal consequences for providing legally protected health care services, which the state defines as reproductive health care services, including abortion, as well as gender-affirming services. The law specifically does the following:
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Prohibits extradition of a provider to another state for providing or assisting in legally protected health care activities
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Prohibits the state from cooperating with investigations in other states into legally protected health care activity
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Creates a cause of action for providers in the Commonwealth for interference with legally protected health care activity
The professional protections, which the Medical Society helped craft, insulate physicians and other health care professionals from adverse consequences from their respective boards of registration for providing legally protected health care activity that does not otherwise fall outside the appropriate standard of care.
For example, simply providing legally protected health care services cannot form the basis of adverse action by the Massachusetts Board of Registration in Medicine, including revocation, suspension, or cancellation of a license or reprimand, censure, or monetary fine; adverse action on an application for licensure; or requirement of information to be disclosed on a physician’s public profile related to the provision of reproductive or gender-affirming services. In all these areas, the Board cannot penalize Massachusetts physicians because of any judgment, discipline, or other sanction arising from such health care services if the services as provided would have been lawful and consistent with good medical practice if they occurred entirely in the Commonwealth.
Expanded Access to Emergency Contraception and Amended Language Regarding Physician Judgment
The law also aims to break down existing barriers to reproductive care by expanding access to emergency contraception by creating a statewide standing order allowing licensed pharmacists to provide emergency contraception. It also improves access to medication abortion by requiring it to be available on public college campuses and improves the affordability of reproductive health care services by requiring insurance coverage of abortion without cost-sharing.
Lastly, the law amends the state’s 2020 ROE Act language allowing abortion later in pregnancy to be performed when “in the best medical judgment of the physician” the abortion is “warranted because of a grave fetal diagnosis that indicates that the fetus is incompatible with sustained life outside of the uterus without extraordinary medical interventions.” Importantly, the new law clarifies that a medical review process cannot override a decision by physician and patient that abortion later in pregnancy is statutorily authorized under the circumstances enumerated in the law. This importantly codifies due deference to physicians, offering broader discretion to use their best medical judgment to offer the full scope of options for patients who are facing a devasting medical diagnosis later in pregnancy, so that no one must travel out of state to access abortion care.
Protecting equitable access to reproductive health care, including abortion, and the right to seek the trusted guidance of a physician are critical to the health and well-being of all who may become pregnant. In the view of the Medical Society, no one should fear legal or professional consequences for providing or accessing evidence-based reproductive health services. Massachusetts proudly remains a bedrock for access to critical reproductive health care services, and the Medical Society is committed to supporting our physicians as they continue to navigate a post-Roe landscape.
