[Senate Hearing 118-560]
[From the U.S. Government Publishing Office]
S. Hrg. 118-560
THE ECONOMIC AND HEALTH IMPACTS OF
THREATS TO REPRODUCTIVE RIGHTS
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FIELD HEARING
BEFORE THE
SUBCOMMITTEE ON
ECONOMIC POLICY
OF THE
COMMITTEE ON
BANKING,HOUSING,AND URBAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
ON
EXAMINING THE ECONOMIC AND HEALTH IMPACTS OF THREATS TO REPRODUCTIVE
RIGHTS
__________
MAY 29, 2024
__________
Printed for the use of the Committee on Banking, Housing, and Urban
Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available at: https: //www.govinfo.gov /
__________
U.S. GOVERNMENT PUBLISHING OFFICE
58-646 PDF WASHINGTON : 2025
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COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS
SHERROD BROWN, Ohio, Chair
JACK REED, Rhode Island TIM SCOTT, South Carolina
ROBERT MENENDEZ, New Jersey MIKE CRAPO, Idaho
JON TESTER, Montana MIKE ROUNDS, South Dakota
MARK R. WARNER, Virginia THOM TILLIS, North Carolina
ELIZABETH WARREN, Massachusetts JOHN KENNEDY, Louisiana
CHRIS VAN HOLLEN, Maryland BILL HAGERTY, Tennessee
CATHERINE CORTEZ MASTO, Nevada CYNTHIA M. LUMMIS, Wyoming
TINA SMITH, Minnesota J.D. VANCE, Ohio
RAPHAEL G. WARNOCK, Georgia KATIE BOYD BRITT, Alabama
JOHN FETTERMAN, Pennsylvania KEVIN CRAMER, North Dakota
LAPHONZA R. BUTLER, California STEVE DAINES, Montana
Laura Swanson, Staff Director
Lila Nieves-Lee, Republican Staff Director
Elisha Tuku, Chief Counsel
Amber Beck, Republican Chief Counsel
Cameron Ricker, Chief Clerk
Shelvin Simmons, IT Director
Pat Lally, Assistant Clerk
______
Subcommittee on Economic Policy
ELIZABETH WARREN, Massachusetts, Chair
JOHN KENNEDY, Louisiana, Ranking Member
JACK REED, Rhode Island MIKE ROUNDS, South Dakota
ROBERT MENENDEZ, New Jersey THOM TILLIS, North Carolina
CHRIS VAN HOLLEN, Maryland CYNTHIA M. LUMMIS, Wyoming
TINA SMITH, Minnesota STEVE DAINES, Montana
JOHN FETTERMAN, Pennsylvania
Gabrielle Elul, Subcommittee Staff Director
Jennifer Newman, Republican Subcommittee Staff Director
(ii)
C O N T E N T S
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WEDNESDAY, MAY 29, 2024
Page
Opening statement of Chair Warren................................ 1
Opening statements, comments, or prepared statements of:
Senator Edward J. Markey of Massachusetts.................... 3
WITNESSES
Andrea Joy Campbell, Attorney General, Commonwealth of
Massachusetts.................................................. 4
Prepared statement........................................... 29
Rebecca Hart Holder, President, Reproductive Equity Now.......... 7
Prepared statement........................................... 30
Kathryn Fay, Fellow, Physicians for Reproductive Health, and
Physician, The Brigham and Women's Hospital.................... 9
Prepared statement........................................... 35
Carol Rose, Executive Director, ACLU of Massachusetts............ 11
Prepared statement........................................... 37
Additional Material Supplied for the Record
Statement submitted by SBM....................................... 41
(iii)
THE ECONOMIC AND HEALTH IMPACTS OF THREATS TO REPRODUCTIVE RIGHTS
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WEDNESDAY, MAY 29, 2024
U.S. Senate,
Committee on Banking, Housing, and Urban Affairs,
Subcommittee on Economic Policy,
Boston, MA.
The Subcommittee met at 2:10 p.m., in room 900A, 15 Sudbury
Street, Boston, Massachusetts, Hon. Elizabeth Warren, Chair of
the Subcommittee, presiding.
OPENING STATEMENT OF CHAIR ELIZABETH WARREN
Chair Warren. This hearing will come to order.
We're holding this hearing because reproductive freedom,
even here in Massachusetts, may disappear. In 2022, far right
Supreme Court Justices took away the constitutional right to an
abortion, completing the job that Donald Trump sent them there
to do. In overturning Roe v. Wade, the Supreme Court abandoned
almost 50 years of precedent.
In some States, the Court's decision revived abortion bans
laying dormant since the 19th century. In other States, the
decision triggered new abortion restrictions prewritten to go
into effect the day that Roe v. Wade was overturned. The
results have been horrifying.
A 10-year-old rape survivor was forced to leave her State
to get the abortion she needed. Pregnant women have been turned
away from emergency rooms and forced to wait until they are
even closer to the brink of death before doctors will treat
them. And nearly one in five patients have been forced to cross
State lines for abortion care.
As other States race to ban or significantly restrict
women's reproductive rights, Massachusetts moved in the
opposite direction. Our Commonwealth stepped up to protect
reproductive freedom.
In 2022, Massachusetts lawmakers passed a novel shield law
to protect abortion providers in Massachusetts from out of
State legal actions when they provide care to people residing
in States with abortion bans. In 2023, Attorney General
Campbell set up an abortion legal hotline. Also last year after
a Federal court ruling in Texas that temporarily blocked the
FDA's approval of mifepristone, Governor Healey issued an
Executive order protecting medication abortion and initiating a
process to stockpile the drug.
Our Commonwealth is working hard to protect reproductive
rights. And the Biden administration is using every tool it has
to defend women's freedom to make decisions about their own
bodies. But recent legal challenges are a reminder that these
safeguards will not be enough to protect women from right-wing
politicians who are determined to rip away their reproductive
freedom no matter where they live.
First, whether a doctor is legally allowed to protect your
health is on the docket. This year, the Supreme Court will
decide whether Idaho's total abortion ban prohibits doctors
from providing, quote, ``stabilizing treatment,'' close quote,
to patients who require an emergency abortion in violation of
Federal law protecting access to emergency treatment. If the
Supreme Court rules in favor of Idaho, you can bet that
Republicans in Congress will try to make these restrictions the
law of the land.
In another case before the Supreme Court, Republicans have
asked judges to review steps the FDA took to expand access to
abortion medication, mifepristone. Republicans understand that
medication abortion now accounts for nearly two-thirds of
abortions nationwide. And they are willing to take down the
entire drug regulatory system in order to curb access to this
FDA-approved medication. If the Supreme Court rolls back these
policies, no one will be able to access medication abortion
over telehealth or at their local pharmacy no matter where you
live, in Alabama or Massachusetts or any other State in the
United States.
These two challenges to abortion rights are in Trump's
Supreme Court. But there are other threats as well. Republicans
intend to put in place a nationwide abortion ban.
There is already a bill in the House of Representatives,
the Life at Conception Act, that has the support of the
majority of the Republican Caucus, including Speaker Mike
Johnson. This bill would create something called fetal
personhood, requiring full legal protection for any fertilized
egg, outlawing abortion and IVF and possibly some
contraception.
But a future Trump administration doesn't even need
Congress to enact a nationwide ban. The Heritage Foundation is
calling for enforcement of a 19th century law that criminalizes
the mailing of anything, quote, ``designed or intended for
procuring an abortion.'' Now to be clear, many lawyers think
this law is unenforceable.
But that will stop Donald Trump from intentionally
misapplying the law to get the results his extremist base
wants. And it will not stop radical courts from letting him do
exactly that. If they succeed, these efforts won't be limited
to the States where abortion is already restricted. They will
be used to block abortion everywhere, including right here in
Massachusetts.
I am furious that millions of women have lost fundamental
rights. I am furious that their freedom to make their own
decisions has been taken away by a small number of extremists.
I am alarmed by what the radical Supreme Court and
congressional Republicans are prepared to do to unravel under a
future Trump presidency. And that is why we are holding this
hearing today, to hear firsthand about the impact of these
threats and to discuss what we can do to fight back.
With that, I want to pause and ask my good partner in all
kinds of trouble, Senator Markey, if you would like to make
some opening remarks.
OPENING STATEMENT OF SENATOR EDWARD J. MARKEY
Senator Markey. Thank you, Senator Warren. And thank you so
much for your leadership on this issue and so many other
issues. This is just such an incredibly important hearing.
And you brought the Massachusetts all-star team together,
the national leaders who come from our great State, Attorney
General Andrea Campbell, Carol Rose, Dr. Kathryn Fay, and
Rebecca Hart Holder. Thank you all so much for appearing today.
On June 24th, 2022, the Supreme Court majority overturned
Roe v. Wade and placed the bodily autonomy of millions in the
United States in immediate jeopardy. Today, that has left us
with 21 States that have restricted the right to abortion. And
the Supreme Court has two more cases before it that could
imperil abortion care nationwide, including here in
Massachusetts.
This is due to a majority on the Supreme Court fueled by
decades of advocacy by radical Republicans and right-wing
extremists. We are in a multigenerational war that is rooted in
the Nation's history. In 1927, the Supreme Court in Buck v.
Bell approved forced sterilization in a decision steeped in
ableism.
Federal funds were used to sterilize 100,000 to 150,000
women, half of whom were Black. This would later be called the
Mississippi appendectomy. But this cruelty knew no geographic
bounds. Across teaching hospitals in New York and here in
Boston, this was done to poor Black and Puerto Rican women as
practice for medical students here in our city.
Right-wing extremists and radical Republicans aren't just
waging a battle against the constitutional right to an
abortion. They're in a war against reproductive justice and
American freedom. Roe provided an opportunity to unwind that
history and provide people with true reproductive freedom and
choice.
But with Dobbs, the Supreme Court majority allowed the
roots of injustice to grow deeper in America's soul. Dobbs
showed right-wing extremists that the playbook in their war on
reproductive rights might work.
Their playbook is three steps. First, spread disinformation
and hate for people who need care and the providers giving it.
Second, use statehouses and local judges to translate the
disinformation into laws, stripping people of their right to
care and placing providers at risk. And finally, number three,
leverage State and local efforts to create national bans on
care.
But we won't let them win. American's health and freedom is
too important. The right-wing extremist playbook opened the
door for abortion bans to steadily creep into threats to in
vitro fertilization and the right to contraception.
And today, threats to birth control medication that is
essential for American's health care and their economic and
social freedom are real and they are imminent. Across the
country we are seeing dangerous misinformation about gender-
affirming care translating into threats to patients and
providers here in Massachusetts. And State and local laws
nationwide undermining access to essential care for transgender
people.
And now Members of Congress are working relentlessly to
place national restrictions on this care. We will show radical
Republicans that their playbook will not work. States like
Massachusetts will act as a safe haven with resources and legal
protections for patients and providers.
And in Congress, we will work to expand the Supreme Court
and confirm judges at every level of the Federal bench who
support bodily autonomy, freedom, and justice. We will fight to
protect the right to essential health care by law. And we will
make radical Republicans reveal what GOP really stands for,
Grossly Oppressive Politicians, trying to intervene in the
decisions of citizens in our country.
Next week, the U.S. Senate will hold a vote on my bill, the
Right to Contraception Act. This bill protects people's right
to get birth control and providers' rights to give it.
Republicans have blocked Senate passage of this bill by
unanimous consent twice, in 2022 and 2023.
But now this is the first time that the bill has come up
for an actual vote. And members of the Senate Republicans will
be forced to go on the record on what they support, the right
to contraception or the right to contravene.
Preserving Americans' health and freedom through the right
to contraception should be an easy answer. Radical right-wing
extremism has made it hard. The arc of the moral universe will
not bend toward justice because of this Supreme Court majority
and radical Republicans but in spite of them.
And while extremists are fighting to strip away Americans'
freedoms, many of you in this room are righteously fighting for
that freedom. You have not given up and neither will we. It is
because of you that we will win this fight, and we will fight
until we win.
So thank you, Senator Warren. Thank you for conducting this
just historically important hearing.
Chair Warren. Thank you, Senator Markey.
I'd like to introduce our panel today. I want to welcome
our witnesses who are here. We have the Honorable Andrea Joy
Campbell, Attorney General for the Commonwealth of
Massachusetts, Ms. Carol Rose, executive director of the ACLU
of Massachusetts, Dr. Kathryn Fay, a fellow with Physicians for
Reproductive Health and physician at Brigham and Women's
Hospital, and Ms. Rebecca Hart Holder, I moved around as I said
that, president of Reproductive Equity Now.
What I'd like to do is have each of you speak for about 5
minutes if you could. And we'll take that as your opening
testimony. And perhaps we could start with you, General
Campbell.
STATEMENT OF ANDREA JOY CAMPBELL, ATTORNEY GENERAL,
COMMONWEALTH OF MASSACHUSETTS
Ms. Campell. Thank you, Senator Warren, for your
leadership. Thank you as well, Senator Markey, for your
leadership and, of course, the opportunity to testify before
you.
It is no secret how dire the State of reproductive health
care access currently is, not only in parts of Massachusetts
but, of course, across the country. While I have the honor and
I would say the privilege of serving as the Attorney General of
Massachusetts which has long been, of course, a beacon in the
pursuit of reproductive justice, I recognize that much work
remains, not just at the State level but also locally and
nationally. I look forward to working with each of you and, of
course, my colleagues across the country who are on the front
lines to continue this fight to ensure that people could access
the health care they so desperately need. And we will not only
fight. We will win.
When the Supreme Court struck down Roe in 2022, it
eliminated 50 years of legal precedent that recognized the
basic right to abortion. The effects of this decision were
immediately felt across the country as so-called trigger bans
went into effect, leaving patients suddenly without access to
critical and sometimes lifesaving care.
Today, nearly half the States in the country have banned or
severely restricted access to abortion care. The result has
been devastating, leaving hundreds of thousands of people
without access to comprehensive reproductive health care in
their States and enforcing people to delay or forego abortions
which all too often threatens their health, wellbeing, and
financial security. It also exacerbates existing health
disparities, disproportionately impacting Black and Brown
people, low-income earners, indigenous people, young people,
and those living in rural communities. Patients traveling
across State lines for care must do so with the knowledge that
they may be subject to digital surveillance or even
prosecution, not only of themselves but of their friends, their
families, and helpers.
Beyond these strains, the expansive scope of some of these
abortion bans threatens providers across State lines. Even in
Massachusetts, providers face increased risk of civil and
criminal liability through bounty hunter schemes and reported
travel bans. These schemes also target those who assist
patients with accessing abortion care causing significant fear
across the country.
To meet this latest cruel moment in our Nation's history, I
along with my colleagues in State government and other
Attorneys General nationally, we have stepped up to ensure
people can continue to access reproductive care in our States.
In 2022, in response to Dobbs, my office under now-Governor
Healey, of course, worked with our State legislature to codify,
enhance protections to reproductive health care broadly as well
as gender-affirming care. While this legislation made many
significant improvements to our reproductive health care
landscape, one of the most impactful was its insurance mandate,
requirement coverage for abortion and abortion-related care
without cost-sharing.
This legislation also included the Nation's leading
abortion care protection law, sometimes referred to as the
shield law, that puts in place critical protections for people
who provide access or facilitate access to abortion and gender-
affirming care here in the Commonwealth. It was the first such
law in the country to protect providers licensed and physically
present in Massachusetts from the effects of out-of-State
abortion bans, regardless of the patient's location at the time
the care was provided.
Since we passed our law, six States have passed comparable
protections. And these laws have helped thousands of patients
access abortion care in these States, including Massachusetts.
To operationalize the shield law, my office, in collaboration
with the ACLU of Massachusetts are delighted to be here with
Carol, Reproductive Equity Now, delighted to be here with
Rebecca. The Women's Bar Association, and five incredible law
firms launch an Abortion Legal Hotline to provide free,
confidential legal advice and resources to health care
providers, helpers, and patients seeking care from
Massachusetts providers.
While I'm proud of how we in Massachusetts have met this
moment, challenges still exist on many fronts. Efforts are
ongoing at the State and Federal level as you've described to
curb reproductive freedom. Similar battles are also ensuing in
courts across the country and not just about abortion care as
you also remarked but also about contraceptive access, gender-
affirming care, and other private health care concerns.
To confront these threats, I have formed a reproductive
justice unit within my office, which focuses on advancing
reproductive justice at the State and national level. In its
short tenure, this unit has established itself as a trusted
partner and resource among community organizations, health care
providers, and advocates as well as colleagues across attorney
general offices nationally. It has been extremely
intersectional in its work, not merely just talking about
access to abortion care, maternal health disparities, gender
affirming care, and health care generally.
I'm really proud of the work of the unit thus far,
including Sapna who's our executive director of that unit. Our
collaboration with other AG offices also extends into other
avenues. I have been asked and had the immense honor or
chairing the Reproductive Rights Working Group within the
Democratic Attorneys General Association which will work to
develop and defend shield laws through the country, work
together, of course, to share information with each other in
real time, develop best practices, and work daily to protect
individual access to abortion, contraception, and the full
spectrum of reproductive health care.
I also continue, of course, to defend State and Federal
laws protecting abortion access as you mention, of course, as
high as the Supreme Court. We will continue to do our part.
This decision has the potential to undermine--I should take a
step back.
We've also specifically--and I want to, of course, mention
one case, advocated in support of the FDA in the Food and Drug
Administration v. Alliance for Hippocratic Medicine, which we
all know is a right-wing effort targeting FDA's approval of
mifepristone, which is a safe and effective drug that has
benefited over 3 million Americans. This decision has the
potential to undermine not just FDA's drug approval process in
this context but, of course, with respect to almost any other
drug we can think of. To ensure that pregnant people continue
to access this medicine, I along with 23 other attorneys
general filed an amicus brief urging the Supreme Court to
reverse the 5th Circuit's decision and to uphold the FDA's
decision to permit medically appropriate access to
mifepristone.
Since Dobbs, we've also seen renewed efforts to provide
fetuses and embryos with personhood status. This legislative
session alone, at least 14 States have filed bills to provide
fetuses with personhood status. These laws will have many
unintended consequences, including effectively eliminating a
pregnant person's right to make medical decisions for their own
health, mitigating access to assisted reproductive technologies
like IVF, and even restricting people's rights to
contraceptives.
These types of laws are dangerous, and they're already
creating confusion and fear for providers and patients alike.
I'm grateful to the providers in Massachusetts. Thank you for
your leadership and also for the work that we continue to do
across the country.
I have to quickly remark. It was most recently in Texas
with other democratic AGs. And we had the honor and privilege
of listening to providers, including a mother shared her
horrific story of attempting to access care.
This is truly the issue of our generation to solve. And as
doom and gloom and dark as it may seem right now in Texas in
terms of their rights and frankly lack of access to a legal
abortion and other reproductive health care, and the fear and
confusion that's being created in that State, I was really
proud to listen to these providers who are on the front lines
doing the work every single day, including along the border to
ensure folks have access to health care. And the fact they're
looking to not only Massachusetts but other democratic AGs in
other States to help them provide that care.
We will do our part. I'm really delighted to be here with
each and every one of you. Thank you again, Senator Markey. And
thank you again, Senator Warren, for your leadership in hosting
this hearing. Thank you.
Chair Warren. Thank you, General Campbell.
Ms. Hart Holder.
STATEMENT OF REBECCA HART HOLDER, PRESIDENT, REPRODUCTIVE
EQUITY NOW
Ms. Hart Holder. Thank you, Senators. Thank you for
inviting me to testify today.
It's been almost 2 years since Donald Trump's Supreme Court
overturned Roe v. Wade and unleashed a public health, racial
justice, and gender equity crisis in our country. And I'm going
to talk a little bit about the impact here in Massachusetts. We
have felt a growing tidal wave in our Commonwealth.
We know that providers have already seen patients from
Alabama, Arkansas, Florida, North Carolina, South Carolina,
Tennessee, Mississippi, Texas, Wisconsin, Louisiana, Georgia,
and the surrounding New England States. And we know anecdotally
from colleagues in New Hampshire that they are seeing some
patients from Massachusetts because of increased waiting times
here. But I do want to remind us all that providers in
Massachusetts began seeing patients from out of State well
before the Dobbs decision was leaked.
When the Supreme Court failed to enjoin Texas law SB8 in
2021, almost immediately our providers started seeing patients
from the southwest. And that's why we joined with our partners
at Planned Parenthood and the ACLU of Massachusetts before the
Dobbs decision was even leaked to put forward the Beyond Roe
agenda for Massachusetts which is a 21-point plan to make clear
that we have to go beyond Roe v. Wade to ensure equitable
access to reproductive health care for all the people in our
State. As Attorney General Campbell said, weeks after Roe fell,
the Massachusetts legislature acted boldly to pass a
reproductive health care package that included several of our
key recommendations in the Beyond Roe agenda, including Best in
the Nation shield law protections for abortion providers and
patients and offering a shield for providers offering care via
telehealth regardless of the patient's location.
To help providers make sense of how they're protected under
the shield law, we partnered with the Massachusetts Attorney
General's office, the ACLU of Massachusetts, and five private
law firms to launch the abortion legal hotline. It's a free and
confidential resource for patients and providers to learn more
about their rights to provide or obtain abortion care. And I
just want to give you a little insight into the kinds of calls
we're getting.
So far, we've gotten over 120 calls to the hotline. And
we've helped providers understand how they can provide
telehealth abortion care to patients in banned States. We found
counsel for people negatively impacted by anti-abortion centers
or crisis pregnancy centers. We've helped providers establish
long-term relationships with pro bono legal counsel. And we've
aided patients seeking abortion care in our State.
But even as people come to Massachusetts for care, people
in our State are still being turned away because there's a big
difference between the legal right to abortion and a person's
ability to actually access that care. Researchers estimated
that in the first 4 months post-Dobbs at Planned Parenthood in
Massachusetts, there was a 37 percent increase in patients
traveling from out of State. That's a number we only expect to
grow as we get more data.
That means our clinics are contending with more patients,
more appointments. Our funds are paying for more care, and our
health system is facing more and more strain. And we know that
access deserts exist in our State, particularly in western
Massachusetts and southeastern Massachusetts and particularly
as applied to in-clinic care.
And as the Attorney General said, we know it
disproportionately impacts low-income people, BIPOC
communities, LGBTQ people, and people in rural communities. And
I want to be clear that travel and transportation barriers
persist. And it really highlights the fact that the
reproductive justice crisis is also a transit justice crisis
and an economic justice crisis.
Restrictions on abortion care throughout pregnancy also
continue to send patients out of our State for care. All the
while severe maternal morbidity has nearly doubled in
Massachusetts from 2011 to 2020 with Black mothers experiencing
the worst rates of complications. Abortion access is
intrinsically connected to maternal health, and we cannot
address these crises in a silo, especially when more than 30
anti-abortion centers throughout Massachusetts continue to spew
medical disinformation and dissuade patients from accessing
abortion care and put public health at serious risk.
And as anti-abortion extremists become more creative with
their attacks by the day, reproductive equity advocates are
called to constantly wear new hats. For example, thanks to our
work with the ACLU, we are becoming digital privacy experts.
But we have to do more to protect abortion providers and
patient location data and personal information before it is
weaponized by hostile actors in other States. So we have to
pass the Location Shield Act here in Massachusetts. And we have
to pass Senator Warren's Health and Location Data Protection
Act in Congress.
In a post-Roe world, Massachusetts has a critical role to
play with strong legislative and executive partners and an
unwavering congressional delegation. We've been able to go on
offense to protect and expand access to care. We have to work
together to ensure that as many patients are able to access
care as possible by sharing strategies, policy ideas, and
playbooks across State lines in red, blue, and purple States.
Post-Dobbs, Massachusetts and New England can and must lead
the way for reproductive equity. And I just want to be clear
that you never see a sign that says, ban abortion, in the 21
States that have banned abortion post-Roe. The goal is to ban
abortion in all 50 States, and we have to be extremely clear-
eyed about this.
But it will not end in abortion. As Senator Markey said, it
includes contraception. It includes IVF. And if Donald Trump is
elected President this November, they will enforce a national
abortion ban.
So our work continues to ensure the full spectrum of
reproductive health care for all people. And I'm delighted to
be here today with my partners and friends. And thank you for
the opportunity to testify, Senators.
Chair Warren. Thank you very much. Appreciate, Ms. Hart
Holder.
Dr. Kathryn Fay.
STATEMENT OF KATHRYN FAY, FELLOW, PHYSIICANS FOR REPRODUCTIVE
HEALTH, AND PHYSICIAN, THE BRIGHAM AND WOMEN'S HOSPITAL
Ms. Fay. Thank you. Good afternoon, Senator Warren and
Senator Markey. Thank you for holding today's hearing on
abortion and for the opportunity to speak to you about access
to this critical care.
My name is Dr. Kathryn Fay. I use she/her pronouns. I'm a
board certified, fellowship trained obstetrician, gynecologist
specializing in family planning.
I provide full spectrum sexual and reproductive health
care, including abortion. And like many in medicine, I've
completed my training in other States, in my case, Illinois and
Utah. Now as a resident of Massachusetts, I bring a firsthand
account of the ways that State policy supports or obstructs
quality health care.
I'm here today as a fellow with the Physician's for
Reproductive Health, a network of physicians from across the
country working to improve access to comprehensive sexual and
reproductive health and as a physician at the Brigham and
Women's Hospital. In Massachusetts, I'm able to provide care
based on what patients and I decide together as safest and
healthiest for their lives using my clinical training and
following best medical practices without political
interference. Massachusetts has been and continues to be a
leader for access to reproductive health care.
And we've heard today about legislation, both before and
after Dobbs has been enacted. And I highlight this because it's
in contrast to my experience working in Utah which prior to
Dobbs employed numerous tactics to hinder and stigmatize those
seeking abortion care policies which have grown only more
extreme in the interim. I'm grateful to live and practice
medicine in a State that's supports the broad scope of sexual
and reproductive health care.
In the past few months, I've cared for people who needed
lifesaving abortion to be in treatment for a new cancer
diagnosis and people who needed an abortion in the setting of a
life-threatening hemorrhage. I've cared for people who sought
abortions in the settling of fetal anomalies, abusive partners,
housing instability, sexual assault, contraceptive failure. The
indications are endless and all of them valid.
However, the Supreme Court's decision in Dobb's has wreaked
havoc on the lives of people across our country who are seeking
care for similar reasons. As States continue to restrict
abortion access, patients are having to travel farther and
farther distances, putting their health and lives at risk. I
have cared for people who traveled long distances to
Massachusetts with ruptured membranes, a diagnosis for which
standard medical care is immediate intervention with an
abortion because of the threat of sepsis and hemorrhage.
Overall, there is an estimated 4,500 more abortions
provided in the Massachusetts formal health care system in 2023
compared to 2020. Last year, 1 in 15 people who received
abortions in Massachusetts were from out of State. For these
patients who have the resources to travel, at the very least,
they're being forced to leave their support systems and
communities. I think about all the people who are unable to
make the expensive, complex, risk-laden journey to essential
care.
People have been forced to remain pregnant since Dobbs, and
there are strong data to show the enduring harms of being
denied a wanted abortion. Everyone deserves access to care in
their community in a manner that is best for them with people
they trust. The ripple effects of abortion bans will continue
to impact other aspects of essential care such as miscarriage
care.
Further, medical trainees and clinicians are reconsidering
their choice of institutions because of hostile State laws, a
finding that extend beyond the specializing in obstetrics and
gynecology. The quality of care in these States will be
jeopardized for generations to come through, for example, the
creation of maternity care deserts evidenced in Idaho which has
already experienced closure of labor and delivery units from
short staffing.
Additional changes to the abortion landscape will happen
this summer when the Supreme Court is said to issue decisions
on two landmark cases. The court's decision and FDA v. AHM will
impact access to mifepristone, not only affecting pregnant
people's access to abortion care but also early pregnancy loss
and stillbirth management. Additionally, the Supreme Court is
considering whether EMTALA preempts State abortion bans.
People should have access to abortion care without barriers
or delay, of course including in emergency circumstances.
Likewise, clinicians should be able to practice without
performing the calculus of what State law permits and instead
focus on applying their medical training to provide the
necessary care that is right for the patient. Abortion
restrictions only serve to burden and endanger patients and
clinicians. They do not make abortion any safer.
These restrictions represent a national movement that
threatens care. If not just for the general moral good, I am
here today advocating for the status of care in Massachusetts.
Since Roe, there has been steady chipping away of sexual and
reproductive rights that has jeopardized reproductive justice
and health for all.
Dobbs was a clear and devastating loss. But it does not
represent an end point. I worry about the loss of mifepristone,
a Federal abortion ban, and threats to contraception and
assisted reproductive technology, all hazards that will
transcend State lines.
Abortion without stipulation is lifesaving, necessary,
compassionate, essential health care. Thank you for having me
here today. I look forward to your questions.
Chair Warren. Thank you, Dr. Fay.
And Ms. Rose.
STATEMENT OF CAROL ROSE, EXECUTIVE DIRECTOR, ACLU OF
MASSACHUSETTS
Ms. Rose. Thank you, Senators, for your leadership and for
holding this incredibly important hearing and for inviting me
to testify. Since the Supreme Court overturned Roe v. Wade, as
we've heard, Massachusetts elected leaders at every level of
Government have taken bold and timely steps to protect access
to reproductive health care in our Commonwealth. Just a month
after the Dobbs decision, State lawmakers passed the shield law
that we talked about to offer legal protections to abortion
providers, patients, and helpers in our State that also cover
gender-affirming care.
And as you've heard, Attorney General Campbell worked with
a number of us in groups to help launch the abortion legal
hotline to help people understand their rights. And then in
response to the Texas lower court decision and the challenge
mifepristone access nationwide, Governor Maura Healey acted to
ensure that providers can continue to dispense medication
abortion in Massachusetts. And now the legislature we hope will
be passing the Location Shield Act through the legislature to
protect the privacy of people seeking health care here in
Massachusetts.
But while Massachusetts lawmakers including you have been
shoring up protections for reproductive justice in our State,
we are not safe. Aggressive anti-abortion efforts at the
Federal level threaten the rights of all people, including the
people of Massachusetts. Efforts to ban abortion nationwide
directly threaten core Massachusetts values.
It threatens the policies that have been carefully
considered and enacted by our States elected leaders. And most
importantly, it threatens the fundamental access to
reproductive health care and bodily integrity for the people of
our Commonwealth. Among the tactics that are being pushed by
extremists in Congress right now are efforts to impose a 15-
week abortion ban.
And if enacted, this ban would make all abortions in every
State, including Massachusetts, illegal after 15 weeks with
only limited exceptions and would subject providers to criminal
penalties for failure to comply. We need only look to the
States where these bans have already been imposed since Roe's
overturn to witness the chaos and the suffering that ensues
from such a ban. Hundreds of clinics have been forced to close,
leaving millions of people without access to reproductive
health care.
Patients have been denied, critically needed emergency
abortion care, endangering their lives and their health. And
the harms of forced pregnancies, of course, as others have
said, fall disproportionately on people from communities of
color, people with low incomes, immigrants, young people, LBGTQ
people, and people with disabilities. It's simply cruel and
unfair to expect survivors of sexual assault or incest or
someone in the middle of a medical emergency to beg for
permission to access the medical care that they need.
Extremists also are pushing radical Federal legislation to
give legal rights to embryos and fetuses. Now the tactic isn't
new. Anti-abortion politicians have long been building these
personhood language into their draconian State laws.
But now as you know, extremists in Congress are trying to
impose this radical idea on every State by pushing the so-
called Life at Conception Act with the intent to make all
abortions illegal nationwide, including here in Massachusetts.
As is often true of policies that ban or restrict abortions,
these so-called personhood laws also threaten other forms of
reproductive health here, including access to contraception,
infertility treatments, miscarriage and stillbirth care,
purporting to make embryos and fertilized eggs ``people'',
quote-unquote, under law cause chaos and confusion that would
disrupt access to many kinds of essential health care in the
Commonwealth and nationwide. The strategy to ban abortion in
all 50 States doesn't end with proposed Federal legislation.
These extremist politicians also want to misuse a 150-year-
old law known as the Comstock Act to circumvent Congress and to
engineer a backdoor national abortion ban. The Comstock Act was
passed in 1873. That was 50 years before women even had the
right to vote.
This is a Victorian anti-vice measure that was anti-sex in
any form. And it was adopted to, quote, ``prevent the males
from being used to corrupt public morals,'' end quote. Now
despite this, some people are now trying to use the Comstock
Act as a backdoor access to try to achieve bans on mailing of
any kind of mifepristone or other drugs that would be used for
abortion care.
But this view of the Comstock Act is simply wrong as a
matter of law. The U.S. Department of Justice, Congress, the
U.S. Postal Service, in every appeals court that has considered
the issue up till now agree the Comstock Act does not prohibit
the mailing or the delivery or the receipt by mail of
mifepristone or misoprostol where the sender does not intend
that the recipient of the drug used them lawfully. And there
are many uses, including abortion care for which these
medicines can be used.
There are many ways in which recipients in every State are
using these drugs without violating State law. And the mere
mailing of drugs to a particular jurisdiction is legally an
insufficient basis for concluding that the center intends them
to be used unlawfully. Massachusetts leaders have time and
again upheld the will of the voters by taking bold actions to
protect the bodily integrity of our people.
We applaud their and your tireless efforts to ensure a
future where every person in every State can access
reproductive health care that they need when they need it.
Thank you. And I'll look forward to hearing your questions.
Chair Warren. Thank you, Ms. Rose. I want to start with our
response to losing Roe v. Wade, our response here in
Massachusetts. But to do that, I want to call out two of our
State representatives who are here right now, Vanna Howard and
Marjorie Decker.
If you both just stand up so everyone gets a chance to see
you. These are women who help protect abortion at the State
level here in Massachusetts and expand that protection. And we
are very grateful to you for that.
So 2 years ago in an instant, Roe v. Wade disappeared.
Republican politicians had schemed for decades to try to force
their unpopular agenda on the rest of America. They decided
that Government, not the person who is pregnant but Government
should make a private health care decision and deny women the
right to control their own bodies and their own futures.
After the decision, dozens of Republican State legislatures
raced to ban or restrict access to abortions. Several States
made it illegal to give, receive, or help another person get
vital reproductive care. But Massachusetts stood up to protect
reproductive freedom.
The State led by two of the women who are here today passed
a groundbreaking shield law to protect health care providers
from unjust investigations and legal actions by anti-abortion
States and advocates. And that was just the start. I'm so glad
that Attorney General Campbell is with us today to talk about
Massachusetts' leadership on reproductive rights.
So let's start with the shield law that Massachusetts
adopted in 2022. Attorney General Campbell, how does the shield
law protect reproductive freedom?
Ms. Campbell. Thank you, Senator Warren. I too want to that
the leadership and, of course, those in the legislature for
their leadership in quickly passing this and again making our
State leadership historic, right? We always tend to be the
first. And in this case, that wasn't any different. And since,
other States have followed.
And what we saw, of course, in the wake of the Dobbs
decision and as abortion and gender-affirming care ban started
going into effect across the country, as my office and team
members, of course, heard from providers who were here seeking
to help about the need for affirmative protections from
potential cross border effects of these bans. And so the law is
a good one and one that other States are looking to model. And
I'll just a share a few points that I think are worth
highlighting about the shield law that are impactful.
This law, it protects licensed providers who provide care
in Massachusetts by a few different things. One is prohibiting
in-State provider licensing bodies from imposing consequences
for violating another State's abortion ban. It bars adverse
impacts to medical malpractice insurance premiums based on
actual or perceived liability for violations of another State's
abortion ban which is really important.
It creates a new cause of action under our civil rights
statute to counteract any out-of-State abusive litigation
concerning the provision of abortion care. It also does other
things that are equally important. It prohibits law enforcement
from cooperating in out-of-State investigations concerning
those who may be providing abortion care or gender-affirming
care.
And I'm going to continue, and I think we all have, lifting
up gender-affirming care which is also sadly under threat in
this country. It also prevents our State courts from enforcing
provisions like subpoenas or other legal processes associated
with abortion or gender-affirming care and investigations or
litigations. It bars extradition in criminal cases which we
know is important as we see more States looking to criminalize
folks in this context.
But it bars extradition in criminal cases involving
protected reproductive health care, including abortion and
gender-affirming care. And all of these protections apply not
just to providers but those who we deem to be helpers
regardless of the patient's location at the time the care was
provided which is really important, meaning that providers are
protected when they interact with a patient located in a State
that has an existing abortion ban. And hence why that hotline
is also really important----
Chair Warren. We're going to come to that.
Ms. Campbell. ----for folks to be able to call that too.
And I know there's supposed to be time constraints which I am
not looking at any of those.
Chair Warren. That's OK.
Ms. Campbell. I see this thing, and I guess I should. But
those are just some of these examples.
Chair Warren. So basically what Massachusetts did is the
legislature said, let's figure out every way we can to protect
those involved in providing abortion care or gender affirming
care and make sure that no matter what happens in another State
that we will still protect anyone providing that care from here
in Massachusetts and anyone. We will protect their license. We
will protect them under insurance policies. We will protect
them from attacks from other States and other State
governments. Fair enough?
And the benefit of this is Massachusetts went first. New
York, Vermont, Colorado, Washington State, then followed past
similar laws. And because of shield laws like ours, over 40,000
people living in anti-choice States have been able to access
abortion with the help of providers who are practicing in other
States.
Now Massachusetts did not stop there. And this is where I
want to give special thanks to our Attorney General. In 2023,
Attorney General Campbell and leaders from our legal community
launched a hotline.
You mentioned it during your testimony. And the idea was to
give patients and providers free confidential legal advice
about abortion access. Can you just dig in a little deeper on
that and explain how the hotline is helpful to those who call
in?
Ms. Campbell. Absolutely. One, I want to just say the
number because I think we should say it.
Chair Warren. Good.
Ms. Campbell. It's 833-309-6301 which is really important.
And it's available not just to folks, of course, who are in
Massachusetts but folks who are outside of Massachusetts. And I
invite my other panelists to also chime in.
But it's free. It's confidential. So it allows folks in a
landscape that is changing every single day. It seems like
every moment to get up-to-date information as to what their
rights are here in Massachusetts, what's available to them, and
possibly also what is happening in the State they may be
calling from or somewhere else.
And the purpose of that was to allow folks to get real
information in real time. But I would also say for folks who
might be in some dire circumstances medically to be able to
call a hotline or someone else to get information to help them
in real time access to critical care they may need, whether
it's in the context of abortion care, gender-affirming care, or
something else within the spectrum of care that is critically
important.
Chair Warren. OK. So let me follow up with that. Ms. Hart
Holder, you lead Reproductive Equity Now. This is the
organization that actually runs the hotline. And you're telling
a story in your testimony a little bit about who comes to
Massachusetts for help.
Can you talk just a little bit more about who's calling in
to the hotline and what it is that they're telling you? You're
on the front line. You see this every day.
Ms. Hart Holder. Yeah, thank you, Senator Warren. So I want
to start by kind of saying confusion is the point here. And
that is what we are hearing on the hotline overwhelmingly from
patients, whether they're in Massachusetts or whether they're
looking to access care in Massachusetts, whether that's via
telehealth or they are from Massachusetts originally but they
live in Texas. Or their best friend lives here and is going to
get them on an airplane to help them out.
It's just tremendous confusion about what is legal and what
is not legal. So a lot of the calls that we get are just simply
is it legal to get an abortion in Massachusetts? Where can I
find care? I want to make sure I'm not going to an anti-
abortion center or a crisis pregnancy center.
And that has been, I think, a tremendous theme that we have
heard over and over. I also want to note that we get a lot of
calls from within New England because we are small States. Our
borders are porous.
Maybe you live on the border and it is easier for you to go
grocery shopping in Connecticut than it is in Massachusetts.
And it might be easier to access care in Connecticut than it is
in Massachusetts just because of where you live geographically.
So one of the things that we can do is help point you to the
closest provider.
The other thing that is incredibly important is that as
patients travel from States with hostile legislatures, our
hotline has really served as a clearinghouse for providers to
understand what their risk is. And I really think it's so
important and I can't say strongly enough how important it is
to have some of the best lawyers in Massachusetts through the
private bar and the leaders at the ACLU of Massachusetts as
backstops for our providers. To know that they are there and
they are offering that pro bono legal counsel is incredibly
important.
A lot of the calls that we've gotten are about risk
mitigation. If I want to send--if I want to be a provider that
is sending medication out of State to patients in banned
States, how do I mitigate my risk? That's an incredibly
important role that the hotline has provided.
And I do want to say every single month the number of pills
that are mailed--abortion pills that are mailed across State
lines--increases. And anecdotally from conversations that I'm
having with providers who are operating thanks to the
protection of the shield law, we are providing a significant
proportion of that medication. So this hotline and our
providers who have stepped up and who are so incredibly brave
are making a real impact in the lives of people in banned
States.
Chair Warren. So thank you very much. I'm always proud to
be from Massachusetts but never more so than when I talk to
people who are on the front lines in this fight. Thank you.
Let's go to Senator Markey for some questions.
Senator Markey. Beautiful.
Chair Warren. And then I'll come back for some more.
Senator Markey. Thank you. There are some people who would
argue that State protections for abortion are enough. Each
State should be able to make up their own mind, each State
legislature.
And the Massachusetts legislature was the national leader
in response to Dobbs. Massachusetts passed the ROE Act last
year to protect patients in several of those workers, to
providers who now work in this area with us here today. We
thank you for your work to provide a hotline to support
people's right to an abortion.
And in the days after Dobbs, people in the Commonwealth
locked arms to fend off attacks on the right to abortion. And
for that, I think we're very proud. But that unfortunately does
not make us immune to the national threats with which we face.
So Attorney General Campbell, when U.S. District Judge Matthew
Kacsmaryk appointed by President Donald Trump decided that the
Food and Drug Administration didn't appropriately approve safe
evidence-based medication, abortion drugs, what kind of threat
did that unleash on the right to abortion across our whole
country?
Ms. Campbell. Thank you, Senator Markey. And we can't
stress enough. I think Rebecca spoke to this a little bit.
Access to a medication abortion is the top issue that people
are talking about because it is effective. It is safe. And it
is the tool that is easiest to provide care in the context of
what we're seeing across the country, including in Texas where
I just was and, of course, heard stories of folks who needed
this care and how they could access care outside of Texas and
make it easy is challenging.
And so this is a tool that's safe and effective and allows
for greater accessibility. I just want to also stress decades
of research--not just summaries, but decades of research have
established this as being safe and effective, safer than many
commonly used prescribed drugs. It has been used by millions of
Americans and accounts for 63 percent of abortions in the
United States which I think are figures that are often lost
sometimes in the conversation or with average folks.
And so these anti-science, right-wing attacks not just to
push a national ban but to attack these essential medications.
We're seeing, of course, as a part of the larger effort to
dismantle a system that we know is working and to provide
critical health care. What we're doing--and I'll stress
obviously all of us working in partnership at every level of
Government but particularly AGs in this moment in time and
democratic AGs across this country.
And I have to look at my colleagues because we will not be
effective in this fight if we don't work across State lines.
And we're seeing that as being extremely important. But as we
do this work, we've done a few things. We worked extensively
together to fight back against legal attacks on medication
abortion.
For example, we joined an amicus brief in the Alliance case
as I mentioned that argues in support of the FDA and Danco
pharmaceuticals, which manufactures, of course, mifepristone.
We're working hard to implement the shield law which I think is
equally important to this conversation, particularly as folks
look to criminalize just the mailing process of medications. So
our shield laws are going to become even more important in
helping other States draft those and pass those will be
important.
And then one last piece I want to mention is telehealth
abortions which I think was hinted at by so many folks on the
panel but now account for nearly one in five abortions in the
U.S. And nearly 8,000 per month are provided as a result of
laws like ours. And so these tools are effective and will work.
So in the face of right-wing extremists including right-
wing judges who are politicizing our courts at every level,
we're going to continue to step up and work in partnership. And
those are just some examples----
Senator Markey. Thank you so much.
Ms. Campbell. ----of how we do it.
Senator Markey. And Ms. Hart Holder, Republicans have
introduced a bill to ban abortion nationally at 15 weeks. If
Donald Trump is President and they control the House and the
Senate, what impact would that have on patients here in
Massachusetts?
Ms. Hart Holder. A ban is a ban is a ban. A 15-week ban
will impact the ability of patients to access care post-15
weeks here in Massachusetts. But it's not just that.
It means that it will impact people who are coming here,
make our wait times longer, make it more difficult for folks
who travel here and for people who live here to access care.
And I just want to really say how incredibly outrageous it is
that Mr. Trump and other Republicans think that this is some
kind of a compromise. There is not compromising on our bodies.
There is no compromising on our deeply personal decisions
about if, when, and how to become a parent. So I also want to
be really clear that it is a farce to think that is the end of
what they will do. There are no anti-abortion forces who just
simply want a 15-week ban.
They want to fully ban abortion care with no exceptions.
And we have to be very clear-eyed that that is just an opening
salvo. That is a test to see if they can do it because they
will go farther and the risk is dire in a Trump administration.
Senator Markey. Thank you. And if I may, Ms. Rose, Idaho
has enacted a law that prohibited school-based clinics from
abortion-related activities, including dispensing emergency
contraception. Emergency contraception like Plan B is not
abortion. So how are we seeing these overbroad abortion bans
translating into threats to other reproductive care?
Ms. Rose. That's right, Senator. They are trying to--
they're not stopping at abortion. This isn't even about
abortion. This is about control over people's bodies.
It's about the Government having the right to what kind of
care you're going to achieve. If they are able to do this, Plan
B is not abortion medicine. It's a contraceptive medicine.
And they are trying to go after contraception. They're
trying to go after all aspects of our bodily autonomy and our
bodily integrity. And that's why I'm so glad that you are
pushing this Right to Contraception Act that's going to be
voted on I think next week because it's important that we see
the broader picture, whether it's maternal child health care,
access to abortion and gender-affirming care, access to
contraception, IVF.
All of these things are interrelated. And they won't stop
at just, say, a 15-week abortion ban. They're going to try to
do whatever they can to try to permit people in the Government
to determine our fate and our futures.
Senator Markey. Thank you.
Chair Warren. Thank you, Senator Markey. And thank you, Ms.
Rose, for that. So I think the point that all of you are
driving toward is that no one is stopping with just overturning
Roe. No one is stopping with just--there are 21 States that
have restricted abortion, that this is a juggernaut that's
moving and that it is urgent for us to fight back.
So I want to talk about one of the pieces that the right-
wing extremists have advanced. And that is the so-called Life
at Conception Act. This is backed by a majority of Republicans
in the House of Representatives. They are cosponsors, a
majority of them, on this bill, including Speaker of the House
Mike Johnson. So Ms. Rose, what would the Life at Conception
Act mean for a woman seeking an abortion right here in
Massachusetts if Life at Conception became law?
Ms. Rose. Well, if Life at Conception becomes law, then a
whole lot of other things are going to become illegal. That
includes contraception, IVF, not just abortion care.
Chair Warren. But what does that do to abortion care? If
you do the Life at Conception, can you do abortion care here--
--
Ms. Rose. No.
Chair Warren. ----in Massachusetts? No.
Ms. Rose. Right. Not at all.
Chair Warren. It's over at that point.
Ms. Rose. Then it's over.
Chair Warren. Yeah.
Ms. Rose. And I think it's really important to recognize
that the implications aren't only on all of us and our bodily
integrity but also on people who need medical care for other
reasons. And I'll defer to the doctor on this. But in addition
to banning types of birth control and IVF treatment, it would
ban research that relies on stem cells.
It could impact therapies for disabilities for people
seeking cures for various diseases. It could deny access to
cancer or other treatments if a patient is pregnant. And it
would just impact thousands of laws in so many different ways
that we can imagine from interrogating criminalizing people for
their actions while they're pregnant, to creating health and
legal nightmares for anything when property and inheritance
rights are granted.
And who can file a lawsuit? So it's this notion that life
begins at the moment of fertilization. It's really dramatic and
huge and sweeping and would create tremendous chaos, even more
than we have right now since Roe was overturned.
Chair Warren. OK. So we currently have a bill pending in
the House of Representatives signed on to by a majority of
Republicans already, including the Speaker of the House, that
would not just ban abortion here in Massachusetts as well as
every other State in the Nation but also have these additional
impacts throughout our health care system. Dr. Fay, could you
just say a word to explain to everyone why this Life at
Conception bill if it were turned into law could make some
forms of contraception illegal?
Ms. Fay. Sure. Different forms of contraception have
different mechanisms of action. And if life were to begin at
conception, it would depend on the definition that someone is
using as their own personal philosophical beliefs of when
fertilization and what significance that has to folks. And that
may interfere with what forms of contraception are acceptable
depending on what point its contraceptive effect is implicated.
Chair Warren. So not to put a too fine a point on this. But
for example, as I understand it, an IUD, an egg may be
fertilized. It simply never implants. And under a Life at
Conception law, would IUDs potentially be banned across the
country?
Ms. Fay. That would definitely be a concern. IUDs function
to incompletely suppress ovulation but also can have a post-
fertilization effect in which case we would worry that one of
these essential tools that we have as clinicians and supporting
people's contraceptive goals would be eliminated.
Chair Warren. OK. And why would a Life at Conception law
interfere with a couple's ability, for example, to use IVF in
order to have a baby that they very much want?
Ms. Fay. Yeah, there would be scenarios that don't make
medical sense where personhood or life is attributed to, for
example, stored embryos that people are using as part of their
family building goals.
Chair Warren. So what I'm understanding here is that we
have this bill pending in the House of Representatives right
now that would ban--effectively ban abortions, some forms of
contraception, IVF, not just in States that signed on but in
all States. So Attorney General Campbell, but we have protected
abortion. Would that be enough to protect us from a Life at
Conception law?
Ms. Campbell. No.
Chair Warren. Why not?
Ms. Campbell. Well, one, certain laws trump our laws. So it
doesn't really matter at some level what we do within the
State. And obviously, that's not finite in every context.
But I think you raise a point that everyone should be
mindful of as we talk about access to reproductive health care
and the full spectrum of care. It isn't just abortion care.
It's contraception. It's birth control.
If you are pregnant and you go to a screening, for example,
and you get information that is not what you want to hear about
your pregnancy and you may choose in consultation with your
provider to make a decision about continuing with your
pregnancy. In some States, you're not allowed to proceed as you
and your family or you or the mother and the husband or partner
may want to proceed. So everyone should care about this issue
because you never know, particularly in the future for mothers
or those who choose to at some point become pregnant what your
reproductive journey will be.
And so all of these threats, whether at State level,
national level, all interfere with a very personal decision and
will ultimately become a very personal process for you and your
family. And we're seeing the barriers just continue to stack
up. And even for progressive States like Massachusetts, we are
also in trouble if some of these national measures proceed.
Chair Warren. I think you put it very powerfully. I want to
hold in my heart everyone who needs reproductive care, whether
it's IVF that they're looking for, contraception, if they're
looking for abortion care at any point as you put it in the
reproductive care journey. And I am very grateful to our
legislature in Massachusetts.
I'm grateful to our Attorney General. But if our Federal
Government steps out and passes a law like this Life at
Conception law, all of our work goes away. And that means we
need to be ringing not just a few alarm bells. We need to ring
every alarm bell possible. Thank you. I appreciate it, Attorney
General. Senator Markey, back to you.
Senator Markey. Thank you. Attorney General Campbell, Texas
received permission from the Trump administration to exclude
emergency contraception from Medicaid funded family planning
programs. Why is it important to protect and guarantee access
to contraception, especially when we see limits to coverage for
our contraception disproportionately impact access for low-
income women and women of color in our country? We know those
discriminatory practices continue to exist in our country. So
why is it important to keep that access open?
Ms. Campbell. Well, first of all, I think we've all
stressed this. Thank you for your leadership and, of course,
the vote that is coming up next week with respect to your
legislation. I think we all have been attempting to frame--and
I want to move away even from talking points, right, why it's
important for folks to look at the full spectrum of care.
You don't know what you may need at any given particular
time until you go in and consult a medical professional. And in
that personal conversation and engagement, you and your doctor
choose to make a decision about your reproductive health
journey or any other health journey for that matter. And so
access to these medications and many of these, of course, we
know from decades of research and personal stories to be safe,
to be effective is essential as we look at the full spectrum of
care.
And it is sadly in some States that we're seeing not only
barriers to access in this are outright banned from usage,
we're also seeing crisis pregnancy centers or other entities
being cropped up. And in Texas since we're speaking of Texas,
these entities funded by the State itself that is providing
confusion and misinformation to folks as they're seeking care
along the spectrum. And we know sadly whether it's women or
people of color or Black women or Brown women or poor folks who
have disproportionately over the course of centuries been
blocked access to this critical care.
This is a fight that we should all pay attention to. That's
one piece. And whether it's happening within a particular State
or the national level, when we choose to make these decisions
with our doctors, no one--no third party whether it's the
Government or some individual somewhere--should stand in the
way of us being able to do what we need for our own health.
Senator Markey. Great. Thank you. And Ms. Holder, when
former President Donald Trump was asked whether he supports
restrictions on a person's right to contraception, he said,
we're looking at that. We're looking at that. So do you think
we should be worried if Donald Trump is President again and
he's thinking about whether or not access to contraception is
something that should be legal across the country? Is this
something that should be at the top of the list of issues for
people all across the country?
Ms. Hart Holder. Yes. As the great Maya Angelou says, when
someone shows you who they are, you should believe them. Donald
Trump is showing us exactly who he is by essentially refusing
to answer that question and sort of giving us a hat tip to the
fact that they're looking at it. If you look at Project 2025
which is a 900-page The Heritage Foundation playbook about what
the first year of a Trump administration would look like, they
are very clear that they are trying to conflate abortion with
contraception.
They are not the same thing. They know that contraception
is extraordinarily popular nationwide. They know that if they
try to ban contraception, they will lose in the court of public
opinion.
So they're trying to make us think that putting an IUD in
is abortion or using emergency contraception is abortion. That
is not backed up by science or data or any real doctor that any
of us have ever spoken to. So it's really important that again
when we think about--as Senator Warren said to me earlier, when
we think about the States as laboratories of democracy which
certainly Massachusetts is, Louisiana is just as much a
laboratory for anti-abortion laws that are going to be a
template for the rest of the Nation and eventually a Federal
law. We have to be really clear-eyed that Donald Trump wants to
come after contraception.
Senator Markey. Right. And the correct answer is Donald
Trump. No, there should be no restrictions on the access to
contraception in our country. And I think he's going to be
taught that lesson this year. I think it's coming his way.
And just one final question on this round if I may.
Abortion is part of a broader array of reproductive care. And
all reproductive care is essential to people's health. Millions
of people across the country rely upon reproductive care like
birth control for their social and economic freedom and to
treat health conditions like polycystic ovarian syndrome or
endometriosis or to prevent cancer. Dr. Fay, please describe
why access to contraception is absolutely essential to your
patients.
Ms. Fay. Sure. Thank you. So contraception is one of our
primary tools in helping people decide if and when they want to
have a family. But also, as you said, the majority of
contraceptive users have used contraception for its non-
contraceptive benefit.
So to help with things like painful or heavy menses or to
treat pre-cancerous conditions. And so loss of access to
contraception would, of course, affect both of those purposes
for use. And further, if there is restriction in terms of what
options there are for contraception, I have folks coming to me
with a variety of indications or comorbidities or preferences
that would already narrow the scope of options available to
them. And so I need the entire suite of contraceptive methods
available to help find the best fit for my patients and do
right by them.
Senator Markey. Thank you. Thank you, Senator Warren.
Chair Warren. Thank you. So it's pretty clear that
Republicans are openly marching toward a nationwide abortion
ban. And despite what Donald Trump says about abortion can be
decided State by State, his Republican cronies in Congress have
already introduced legislation to ban abortions at 15 weeks.
And Trump has refused to say that he would veto such a ban.
So I just want to talk for a minute because I really want to
talk about the pieces of legislation that's already out there
for us to see. They're not just a dream. They're not just
someone's imaginary concerns. These are things that people are
already signing on to and vetting and trying to move forward.
So Dr. Fay, could you just say a little bit more about what a
15-week nationwide abortion ban would mean for patients right
here in Massachusetts?
Ms. Fay. Sure. The number 15 weeks doesn't correlate to
anything clinically significant. It doesn't have a medical
meaning. And there are people who come to me with innumerable
reasons for needing abortion care after 15 weeks which they
would be denied.
And there's excellent data to show what happens when people
are denied a wanted abortion, including enduring financial
hardship, increased risk of physical violence in a setting of
intimate partner violence, and health consequences. In fact, we
know that places with the most restrictive abortion policies
are also the places with the worst figures around maternal
morbidity and mortality. So surely such a ban would contribute
or exacerbate what we already recognize is a national health
crisis.
Chair Warren. So in other words, if we had a 15-week
nationwide abortion ban, maternal mortality rates would likely
increase?
Ms. Fay. There is a very short line that I think would be
drawn between those two events.
Chair Warren. So this would--a 15-week abortion--nationwide
abortion ban would force women to carry pregnancies to term
even if it had serious consequences to their health. Now many
supporters say, oh, but there are exceptions. We read this all
the time.
There are exceptions in the case of the necessary save a
life of a pregnant woman or in the case of rape or incest. Dr.
Fay, you're out there on the front lines practicing OB/GYN.
What does it mean to have exceptions? Is that good enough? Does
that provide meaningful access for people in trouble?
Ms. Fay. No, abortion bans do not work. Such legislation is
not compatible with medical practice. No list of exceptions
would ever be sufficient to substitute the nuance that's needed
to practice good medical care.
Chair Warren. OK. So you're telling me it's hard to figure
out where the lines are. What's the consequence when it's hard
to figure out where the lines are? Ms. Hart Holder?
Ms. Hart Holder. The consequence is that providers are
afraid to offer care. And in some States where there are
criminal penalties, they're afraid to provide care because they
can go to jail. So that means that people don't get that care.
We're seeing this in Texas. We're seeing it in Tennessee.
There are very brave women coming forward saying that for
whatever reason, they needed abortion care either later in
pregnancy or because they fell under some kind of an exception
in a State that has an outright ban. And they simply could not
get that care because the exceptions were so opaque that
providers couldn't actually operate them. What it tells us is
exceptions just don't work.
Chair Warren. And Dr. Fay, you're shaking your head. I take
it you agree with that?
Ms. Fay. Definitely. I think such exceptions work in effect
to just cause moral distress for clinicians in watching to wait
if someone might become sick enough. But really the lack of
clarity and the ask of interpreting something with such
subjectivity is paralyzing. And people are putting and pitting
their risk of criminalization or professional good standing
against their good medical sense and obligation and duty to
patients.
Chair Warren. Right. So instead of a doctor and a patient
in an examining room, it's a doctor, patient, a legislator, and
a lawyer----
Ms. Fay. Yes.
Chair Warren. ----in order to make what is supposed to be a
health care decision----
Ms. Fay. Yes.
Chair Warren. ----that should belong to the person whose
health is most affected. We've talked about--Yes, please. Go
ahead----
Ms. Campbell. I just want to quickly----
Chair Warren. ----Attorney General Campbell.
Ms. Campbell. I think all of us are putting ourselves in
spaces to hear real stories from real folks who are navigating
this, whether it's providers in real fear of going to jail and
having to decide if you provide that critical care or not and
then hearing from patients. And most recently, a group of
Democratic AGs heard from a patient who sadly got a diagnosis
during her pregnancy and this was her second pregnancy after 20
weeks and wanted to make the decision with her husband that
they did not want to carry that baby to term. And this is in
Texas and sadly couldn't get any care in Texas so had
fortunately the resources to go elsewhere to get that care.
But what she so remarkably spoke of was her privilege as a
white woman who had access to these resources and another
mother who was a mother of color who did not. And sadly, that
mother could not go to another State for care. She couldn't
afford it, including the childcare for her current child.
And so she had to carry her baby to term knowing that the--
I think she knew it would be a girl, the girl that she would
birth ultimately would die. And sure enough, within a short
period of time after carrying the baby to term, unable to get
the care she so desperately needed, carried the baby to term,
gave birth I believe at her home only to hold that child and to
watch that child die in her arms. That's the state of affairs
right now in this country, the United States of America.
And as one AG remarked, anywhere else, this would be a
human rights violation. So that's the magnitude of what we're
all hearing and dealing with. And it's very traumatic for each
of us as we do this work.
But I just thought it was so important as we talk about the
fear of providers and what folks on the front lines are seeing
and feeling. There's nothing like hearing these stories in real
time from actual folks who have experienced this and had the
courage to come forward to share their testimony on the very
points that you're trying to make that we're all in trouble
when we say, oh, there's just some exceptions. No, they don't
work. They're not effective. They're not impactful because they
are not flexible to deal with what a patient and a provider are
dealing with in that moment in time.
Chair Warren. Right. And the point you make which is so
powerful, those with the fewest resources----
Ms. Campbell. That's right.
Chair Warren. ----will be hit the hardest. Those who have
the most resources may be able to navigate through. But those--
--
Ms. Campbell. Exacerbating existing disparities.
Chair Warren. ----who can't get out of State, those who
can't get help, those who don't have lawyers----
Ms. Campbell. That's right.
Chair Warren. ----standing beside them and lots to back
them up are the ones who will suffer most from this. We have
talked about two pending bills that Republicans are already
pushing forward. I want to mention one last thing and it's the
last question I'll have today and that is even if the
Republicans can't take the House and the Senate in order to
pass something through Congress, if Donald Trump were in the
White House, what could be the consequences for reproductive
care?
And Ms. Rose, you talked about The Heritage Foundation and
how it is pushing the idea that it might be possible to use an
old law from the 1800s, the Comstock Act, in order to restrict
abortion nationwide. You've spoken to that. So I want to ask
Ms. Hart Holder, you are now on the front lines trying to make
sure that there is access to abortion here in Massachusetts. If
Donald Trump were in the White House and he follows the advice
of The Heritage Foundation and satisfies his extremist base,
what would be the consequence here in Massachusetts?
Ms. Hart Holder. Yeah, if he attempts to resurrect the
Comstock Act, which as Carol pointed out is a zombie law from
1873 that should frankly stay dead and it is shameful that the
Republicans are trying to resurrect it. And it really goes to
show you that they will use any means necessary to ban
abortion. If he does that, there are kind of three sets of
major consequences.
One, it will impact our ability to mail medication abortion
across State lines. So those 8,000 pills a month that are
getting to people in banned States, that ends. It will impact
the ability of pharmaceutical companies to mail medication
abortion into States like Massachusetts that have codified the
right to choose.
Chair Warren. So let me just make sure I'm following you
here. First, we can't help others.
Ms. Hart Holder. Right.
Chair Warren. But second, we can't even help ourselves----
Ms. Hart Holder. We can't help ourselves.
Chair Warren. ----because our pharmacies won't be able to
get the mifepristone----
Ms. Hart Holder. Exactly.
Chair Warren. ----or whatever other drug is necessary.
Ms. Hart Holder. Exactly, because obviously--and I'm
talking to a former law professor here. But the Federal
Government regulates intrastate commerce. And therefore, we
will have a big problem with the U.S. mail and getting
mifepristone and misoprostol.
The other thing is that the Comstock Act would outlaw the
tools and devices that help in abortion care. So that could
also impact a clinic's ability to procure the medical
instruments that they need to offer in-clinic aspiration or
surgical abortion care. So the impact on States like ours would
be profound. The Comstock Act simply must be repealed. It is a
relic of a different time that was wrong then and it's wrong
today.
Chair Warren. And we can't have a President of the United
States who's willing to use it.
Ms. Hart Holder. That's right.
Chair Warren. Thank you. Senator Markey.
Chair Warren. Thank you. And we know that The Heritage
Foundation 2025 report is going to be his working document. He
doesn't want to waste time the way he did in 2021. This time,
he's going to be ready to go.
And they've already developed all the policies that he's
going to start to implement. So there won't be this first year
training wheels on this Trump administration. He's absolutely
going to start on January 21st to look at every regulation,
every rule, every agency and just begin to try to roll back
personal protections, roll back civil rights.
And again, as you said, Ms. Holder, Maya Angelou said,
believe someone when they tell you who they are. Well, The
Heritage Foundation is who he is and we should believe it.
That's going to be what we're fighting, and we're going to have
to be doing it on all fronts. And Ms. Hart Holder, in your
written testimony, you state that the right to reproductive
care is not real unless every individual is able to safely
access that care with autonomy and dignity. How can that apply
to gender-affirming care?
Ms. Hart Holder. Thank you. Thank you for that. Great
question.
Senator Markey. Can you just move in the microphone a
little?
Ms. Hart Holder. Reproductive equity not only calls us to
fight for reproductive health care access for everyone but also
demands that we fight to protect bodily autonomy and the right
to self-determination. And that includes medically necessary
gender-affirming care. It's about eliminating all the ways that
all people, including LGBTQ people, are denied access to health
care, to their rights, and to their dignity.
And I just want to be really clear that if you look at a
Venn diagram of the anti-abortion movement and the anti-LGBTQ
movement, it is a circle. It is not a mistake that right after
Dobbs, the Texas legislature went after trans kids. It is the
same people. They are fighting the same fight. And it is simply
about controlling what we do with our bodies.
So we have to be inclusive and expansive in what our
reproductive equity calls us to fight for. I also think it's
important to note that the fall of Roe v. Wade not just
threatens access to abortion and access to contraception. But
the right to privacy underpins the right to marriage.
It is a necessary precursor to eliminate Roe in order to
get to attacking LGBTQ families. So I think we just absolutely
have to see this as all part of one anti-democratic fight that
is coming after our ability to decide what to do with our
bodies and who we love.
Senator Markey. Yeah, you are just so right. So this is a
playbook that they have. And they're kind of experimenting with
it in Texas and some other States. But it's only so they can go
nationwide. They're not going to stop until what they're doing
at the statewide level successfully is implemented across the
whole country.
And they're using children and teenagers as experiments and
as part of all of their efforts. Trying to stoke fears, build
momentum so that they can ultimately pose real threats to
patients, to families across the country. And they're starting
in Republican-oriented city councils and State legislatures all
across the country. But ultimately their goal is to go
national. So Attorney General Campbell, how have you seen
threats to gender-affirming care play out here in Massachusetts
as an example of how our own State is not immune to these
threats?
Ms. Campbell. Thank you, Senator Markey, for the question.
And also, I appreciate you and Senator Warren and this panelist
and others who are always intersectional in talking about
reproductive health care but also threats to gender-affirming
care right now. I feel like every day it seems I along with
other AGs across the country are filing some brief in support
of not just access to gender-affirming care and speaking to
from the lens of our providers the experts of why this care is
critically important for LGBTQ+ folks as well as youth and
trans youth.
But as we see the increase in attacks not just on gender-
affirming care but the community as a whole, and we all look
forward to Pride Month soon in celebrating these communities. I
want to just highlight a couple of points that I think are
important. Many of these attacks, of course, include banning or
severely restricting access to gender-affirming care.
We know that gender-affirming care is medically necessary.
It is safe health care that is backed like all the other things
we've been talking about today, decades of research and
supported by every major medical association in this country
representing over 1.3 million U.S. doctors. Yet the onslaught
of attacks on gender-affirming care threatens the ability for
transgender and non-binary folks, particularly young people as
I mentioned, to be their authentic selves.
This is about freedom. This is about civil rights. And we
want to make it clear in Massachusetts and I think we've done a
great job with our health care providers but also within our
schools and local municipalities to ensure that people have the
legal right to receive gender-affirming care.
Our law protects and ensures safe access to that care. And
we also want to support and lift up those community-based
organizations that are providing this care and respective
communities as far as Western Mass. It's also ensuring gender-
affirming health care is accessible and affordable by
prohibiting insurers from excluding it from their coverage
which also is equally important and something we have been
working hard at. And last, I will stress it's lifesaving care.
And we've heard that through some really incredible
personal testimonies. And whether you are a Massachusetts
resident wanting to come here living elsewhere, we've also
shared that in our advocacy. And we know that young people in
particular live in different settings.
Some are within State custody. Some are incarcerated. We
fight to provide access to health care, including gender-
affirming care. We want to make sure we're doing it in all
settings so that folks receive the care they so desperately
deserve. So thank you.
Senator Markey. Thank you. And I want to give you, Ms.
Rose, the final word on this subject in terms of the need to
ensure that gender-affirming care is protected nationally to
take what we're fighting for here in Massachusetts and make
sure that those are protections that people all across the
country have.
Ms. Rose. Absolutely. And I think to your point, all of
these issues are intersectional. So when we're talking about
abortion care, when we're talking about gender-affirming care,
we're talking about contraception. We're also talking about
racial justice. We're also talking about marriage equality and
LGBTQ equality.
We're also talking about women's rights. We're talking
about socioeconomic justice. So all of these things are of a
piece. And they're all under attack by the far-right in this
country right now.
And they're using abortion as an attempt to get at all of
these other issues as well. And we must keep our eye on the
larger ball of what's happening here because these aren't
separated. And we have seen already here in Massachusetts with
things like book bans.
I mean, I think the American Library Association said that
we rank fourth in the country for efforts of book bans. I think
we are seeing efforts to ban--because we have so many school
districts, I think. We have efforts to ban drag shows and these
kinds of things.
So these are all of a piece. And I think for the ACLU as a
multi-issue organization, we're always looking at those
intersections. And the sad thing we're seeing right now is
increasingly they're becoming a circle as Rebecca said.
And I think it's tremendously important as both a matter of
health care but also as a matter of law and as a matter of
national politics that we do sound the alarm, that we let
people know that all of these things are under attack. And when
one of our rights are under threat, all of our rights are under
threat. So I'm so grateful to the two of you for helping us
here in Massachusetts to both lift up what our local lawmakers
have done but also to help us all to sound the alarm that the
work isn't done and we have to think nationally, act
nationally, as well as thinking and acting locally. Thank you.
Senator Markey. Thank you.
Chair Warren. You good?
Senator Markey. I'm good. Thank you.
Chair Warren. All right. So I just want to say again thank
you to our four witnesses for being here. We will make a record
of this. I appreciate your coming here to testify, but I
appreciate even more the work you are doing every day to
protect people here in Massachusetts but to protect people
around the country.
The threats are real. I am grateful to all of you who came
today and for everyone who is focused on this issue and
understands the immediate threat posed by all of the different
ways in which extremist legislators and extremist jurors are
hoping to impose an agenda on the rest of America that it does
not want. It is our responsibility to fight back, and that
starts by getting information out about what is happening and
making a very visible commitment that we will not go away.
We will continue to raise this issue over and over. So
thank you all very much for being here. This hearing is
adjourned.
[Whereupon, at 3:42 p.m., the hearing was adjourned.]
[Prepared statements and additional material supplied for
the record follow:]
PREPARED STATEMENT OF ANDREA JOY CAMPBELL
Attorney General, Commonwealth of Massachusetts
May 29, 2024
Thank you, Senator Warren, for your leadership. Thank you as well,
Senator Markey, for your leadership and, of course, the opportunity to
testify before you.
It is no secret how dire the state of reproductive health care
access currently is, not only in parts of Massachusetts but, of course,
across the country. While I have the honor and I would say the
privilege of serving as the Attorney General of Massachusetts which has
long been, of course, a beacon in the pursuit of reproductive justice,
I recognize that much work remains, not just at the State level but
also locally and nationally. I look forward to working with each of you
and, of course, my colleagues across the country who are on the front
lines to continue this fight to ensure that people could access the
health care they so desperately need. And we will not only fight. We
will win.
When the Supreme Court struck down Roe in 2022, it eliminated 50
years of legal precedent that recognized the basic right to abortion.
The effects of this decision were immediately felt across the country
as so-called trigger bans went into effect, leaving patients suddenly
without access to critical and sometimes lifesaving care.
Today, nearly half the States in the country have banned or
severely restricted access to abortion care. The result has been
devastating, leaving hundreds of thousands of people without access to
comprehensive reproductive health care in their States and enforcing
people to delay or forego abortions which all too often threatens their
health, wellbeing, and financial security. It also exacerbates existing
health disparities, disproportionately impacting Black and Brown
people, low-income earners, indigenous people, young people, and those
living in rural communities. Patients traveling across State lines for
care must do so with the knowledge that they may be subject to digital
surveillance or even prosecution, not only of themselves but of their
friends, their families, and helpers.
Beyond these strains, the expansive scope of some of these abortion
bans threatens providers across State lines. Even in Massachusetts,
providers face increased risk of civil and criminal liability through
bounty hunter schemes and reported travel bans. These schemes also
target those who assist patients with accessing abortion care causing
significant fear across the country.
To meet this latest cruel moment in our Nation's history, I along
with my colleagues in State government and other Attorneys General
nationally, we have stepped up to ensure people can continue to access
reproductive care in our States. In 2022, in response to Dobbs, my
office under now-Governor Healey, of course, worked with our State
legislature to codify, enhance protections to reproductive health care
broadly as well as gender-affirming care. While this legislation made
many significant improvements to our reproductive health care
landscape, one of the most impactful was its insurance mandate,
requirement coverage for abortion and abortion-related care without
cost-sharing.
This legislation also included the Nation's leading abortion care
protection law, sometimes referred to as the shield law, that puts in
place critical protections for people who provide access or facilitate
access to abortion and gender-affirming care here in the Commonwealth.
It was the first such law in the country to protect providers licensed
and physically present in Massachusetts from the effects of out-of-
State abortion bans, regardless of the patient's location at the time
the care was provided.
Since we passed our law, six States have passed comparable
protections. And these laws have helped thousands of patients access
abortion care in these States, including Massachusetts. To
operationalize the shield law, my office, in collaboration with the
ACLU of Massachusetts are delighted to be here with Carol, Reproductive
Equity Now, delighted to be here with Rebecca. The Women's Bar
Association, and five incredible law firms launch an Abortion Legal
Hotline to provide free, confidential legal advice and resources to
health care providers, helpers, and patients seeking care from
Massachusetts providers.
While I'm proud of how we in Massachusetts have met this moment,
challenges still exist on many fronts. Efforts are ongoing at the State
and Federal level as you've described to curb reproductive freedom.
Similar battles are also ensuing in courts across the country and not
just about abortion care as you also remarked but also about
contraceptive access, gender-affirming care, and other private health
care concerns.
To confront these threats, I have formed a reproductive justice
unit within my office, which focuses on advancing reproductive justice
at the State and national level. In its short tenure, this unit has
established itself as a trusted partner and resource among community
organizations, health care providers, and advocates as well as
colleagues across attorney general offices nationally. It has been
extremely intersectional in its work, not merely just talking about
access to abortion care, maternal health disparities, gender affirming
care, and health care generally.
I'm really proud of the work of the unit thus far, including Sapna
who's our executive director of that unit. Our collaboration with other
AG offices also extends into other avenues. I have been asked and had
the immense honor or chairing the Reproductive Rights Working Group
within the Democratic Attorneys General Association which will work to
develop and defend shield laws through the country, work together, of
course, to share information with each other in real time, develop best
practices, and work daily to protect individual access to abortion,
contraception, and the full spectrum of reproductive health care.
I also continue, of course, to defend State and Federal laws
protecting abortion access as you mention, of course, as high as the
Supreme Court. We will continue to do our part. This decision has the
potential to undermine--I should take a step back.
We've also specifically--and I want to, of course, mention one
case, advocated in support of the FDA in the Food and Drug
Administration v. Alliance for Hippocratic Medicine, which we all know
is a right-wing effort targeting FDA's approval of mifepristone, which
is a safe and effective drug that has benefited over 3 million
Americans. This decision has the potential to undermine not just FDA's
drug approval process in this context but, of course, with respect to
almost any other drug we can think of. To ensure that pregnant people
continue to access this medicine, I along with 23 other attorneys
general filed an amicus brief urging the Supreme Court to reverse the
5th Circuit's decision and to uphold the FDA's decision to permit
medically appropriate access to mifepristone.
Since Dobbs, we've also seen renewed efforts to provide fetuses and
embryos with personhood status. This legislative session alone, at
least 14 States have filed bills to provide fetuses with personhood
status. These laws will have many unintended consequences, including
effectively eliminating a pregnant person's right to make medical
decisions for their own health, mitigating access to assisted
reproductive technologies like IVF, and even restricting people's
rights to contraceptives.
These types of laws are dangerous, and they're already creating
confusion and fear for providers and patients alike. I'm grateful to
the providers in Massachusetts. Thank you for your leadership and also
for the work that we continue to do across the country.
I have to quickly remark. It was most recently in Texas with other
democratic AGs. And we had the honor and privilege of listening to
providers, including a mother shared her horrific story of attempting
to access care.
This is truly the issue of our generation to solve. And as doom and
gloom and dark as it may seem right now in Texas in terms of their
rights and frankly lack of access to a legal abortion and other
reproductive health care, and the fear and confusion that's being
created in that State, I was really proud to listen to these providers
who are on the front lines doing the work every single day, including
along the border to ensure folks have access to health care. And the
fact they're looking to not only Massachusetts but other democratic AGs
in other States to help them provide that care.
We will do our part. I'm really delighted to be here with each and
every one of you. Thank you again, Senator Markey. And thank you again,
Senator Warren, for your leadership in hosting this hearing.
______
PREPARED STATEMENT OF REBECCA HART HOLDER
President, Reproductive Equity Now
May 29, 2024
Senators Warren and Markey, my name is Rebecca Hart Holder and I am
the president of Reproductive Equity Now. As a State and regional
organization, Reproductive Equity Now works in Massachusetts and across
New England to make equitable access to the full spectrum of
reproductive health care a reality for all people regardless of their
gender, age, race, ethnicity, zip code, income, immigration status,
disability, or sexual orientation. Advancing reproductive health,
rights and justice by working to eliminate barriers to abortion care is
central to our mission.
Thank you for the opportunity to submit written testimony regarding
the economic and health impacts of threats to reproductive rights, and
specifically, the state of abortion access in Massachusetts and
nationwide. In this testimony, I will discuss (I) Massachusetts'
abortion access landscape and the bold State leadership that allowed us
to prepare for Roe's fall and react with a bold post-Dobbs response,
(II) barriers to care remaining in Massachusetts, and (III) how ongoing
threats to abortion and the full spectrum of reproductive health care
nationwide position Massachusetts to act as a regional and national
leader to protect and expand access to abortion care.
Massachusetts Acted Boldly in the Wake of Dobbs To Protect Providers,
Helpers, and Patients
In the last 2 years since Donald Trump's Supreme Court overturned
the constitutional right to abortion, 21 States have banned or severely
restricted access to care across our country. \1\ One in three women of
reproductive age currently live in a State without abortion access, and
patients are traveling farther than ever before for care--if they can
afford to travel at all. \2\ While Roe stood, approximately 18,000
people lived in counties that were more than 300 miles away from the
nearest abortion provider, but today, that number has increased to 16
million. \3\
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\1\ ``Tracking the States Where Abortion Is Now Banned'', N.Y.
Times (last updated May 1, 2024 4:40 p.m.), https://www.nytimes.com/
interactive/2022/us/abortion-laws-roe-v-wade.html.
\2\ Geoff Mulvihill, et al., ``A Year After Fall of Roe v. Wade,
25 Million Women Live in States With Abortion Bans or Restrictions'',
PBS: Newshour (June 22, 2023, 8:07 p.m.), https://www.pbs.org/newshour/
politics/a-year-after-fall-of-roe-v-wade-25-million-women-live-in-
states-with-abortion -bans-or-restrictions.
\3\ Clare Trainor, et al., ``One Year Without Roe v. Wade: How
Access to Abortion Has Changed'', Rueters (June 21, 2023), https://
www.reuters.com/graphics/USA-ABORTION/DISTANCE/zgpobowdqvd/.
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Here in Massachusetts, we have no doubt felt the tidal wave of
patients coming to our Commonwealth to access abortion. We know that
providers have already seen patients from Alabama, Arkansas, Florida,
North Carolina, South Carolina, Tennessee, Mississippi, Texas,
Wisconsin, Louisiana, Georgia, the surrounding New England States, and
more, and this cascading impact of bans reverberating in Massachusetts
began long before the Dobbs decision. \4\ When the Supreme Court upheld
Texas' outrageous SB8 abortion ban in 2021, Massachusetts providers
began to see patients traveling from the Southwest immediately. \5\
---------------------------------------------------------------------------
\4\ Martha Bebinger, ``How the Dobbs Abortion Decision Is Playing
Out in Massachusetts, One Year Later'', WBUR (June 23, 2023), https://
www.wbur.org/news/2023/06/23/abortion-supreme-court-one-year-
massachusetts.
\5\ Id.
---------------------------------------------------------------------------
Even before the Dobbs case had made its way to the U.S. Supreme
Court, Massachusetts took action to codify the right to abortion into
State law. With the passage of the ROE Act, Massachusetts also saw the
importance of expanding access to abortion, not just protecting its
legality. \6\ The ROE Act also repealed parental consent requirements
for 16 and 17 year olds, expanding access to abortion care for young
people who cannot afford the delay or difficulty of having to go
through judicial bypass. \7\ The law also expanded the scope of
practice for advanced practice clinicians, including nurse
practitioners, certified nurse midwives, and physician assistants, to
provide abortion care. \8\
---------------------------------------------------------------------------
\6\ An Act Providing for Access to Reproductive Health Care
Services, 2020 Mass. Acts ch. 263.
\7\ Id.
\8\ Id.
---------------------------------------------------------------------------
This landmark legislation laid the groundwork for our response to
the Dobbs decision--we understood what was to come when the Supreme
Court ultimately ruled to eliminate reproductive health care access
across our country. We joined with partners at Planned Parenthood
Advocacy Fund of Massachusetts and the ACLU of Massachusetts before the
Dobbs decision was even released--or leaked--to put forward the Beyond
Roe Agenda for Massachusetts--a 21-point plan predicated on the idea
that Massachusetts has both an obligation and an opportunity to go
``beyond Roe v. Wade'' and ensure equitable access to reproductive
health care for all people in our State. \9\ Our recommendations ranged
from ways to continue expanding access to reproductive health care in
the Commonwealth, such as investing in the grassroots work of abortion
funds and eliminating cost sharing for reproductive health care; to
supporting providers, helpers, and patients and protecting them from
the harmful reach of hostile States seeking to prosecute and
criminalize care beyond their State borders; and finally, to deploying
research and education efforts to ensure the Commonwealth understands
the size and scope of the crisis we continue to face, in order to
deploy the resources needed.
---------------------------------------------------------------------------
\9\ ``Massachusetts Beyond Roe: An Agenda for Abortion Access and
Reproductive Equity'', Beyond Roe Coalition, https://massbeyondroe.com/
(last visited May 28, 2024).
---------------------------------------------------------------------------
Mere weeks after the Supreme Court issued its decision in Dobbs v.
Jackson Women's Health Organization in June 2022, the Massachusetts
Legislature acted boldly to pass a reproductive health care package
that included several of our recommendations, including best-in-the-
Nation shield protections for abortion providers and patients, mandated
insurance coverage without cost-sharing for abortion and abortion-
related care, expanded access to medication abortion for public college
and university students, a statewide standing order to ensure access to
no-cost emergency contraception without a prescription, expanded access
for care later in pregnancy to prevent patients from having to travel
out of State, and an expanded confidential address program to protect
the personal addresses of abortion providers. \10\ This shield law also
specifically protected Massachusetts providers who offer care via
telehealth, by ensuring that providers' licenses are protected from
medical malpractice insurance rate hikes, from out-of-State hostile
litigation related to reproductive health care and gender-affirming
care that is legal in Massachusetts, and from professional or
disciplinary repercussions from a professional board of registration,
all regardless of the patient's location, whether in Massachusetts or
elsewhere. \11\ This unique protection has now been modeled in shield
legislation passed in California, Colorado, Maine, New York,
Washington, and Vermont. \12\ The legislature has also invested nearly
$20 million for reproductive health care access, security, and
infrastructure, including grants to abortion funds and providers, which
has helped us expand access to care and support patients traveling from
afar to afford their care.
---------------------------------------------------------------------------
\10\ An Act Expanding Protections for Reproductive and Gender
Affirming Care, 2022 Mass. Acts ch. 127.
\11\ Id. 1, 4, 20, 23, 32-39. Specifically, the Massachusetts
Shield Law amends M.G.L. ch.13 105 to add new protections for genetic
counselors; amends M.G.L. ch.112 to add a new section to insulate
physicians; amends M.G.L. ch.112 9H to protect physician assistants;
amends M.G.L. ch.112 32 to insulate pharmacists;amends M.G.L. ch.112
77 to insulate nurses; amends M.G.L. ch.112 128 to protect
psychologists; amends M.G.L. ch.112 137 to insulate social workers.
See 2022 Mass. Acts ch. 127 5, 10-11, 14-17.
\12\ In addition to Massachusetts, California, Colorado, Maine,
New York, Washington, and Vermont have enacted telehealth shield laws.
See 2023 Cal. Stat. ch. 260; 2023 Colo. Sess. Laws ch. 68; 2024 Me.
Laws ch. 648 ; 2023 N.Y. Laws ch. 138; 2023 Wash. Laws 193; 2023 Vt.
Acts & Resolves 14 & 2023 Vt. Acts & Resolves 15.
---------------------------------------------------------------------------
The provision of medication abortion via telehealth combined with
shield law protections is crucial for keeping access to abortion across
the Nation. Patients are increasingly opting for medication abortion.
Massachusetts Department of Public Health data from 2022 indicates that
medication abortion accounts for more than 50 percent of abortions in
Massachusetts and newly released national data indicates that in the
U.S. health care system, the use of medication abortion has risen from
53 percent in 2020 to 63 percent in 2023. \13\ While Massachusetts data
for 2023 has not yet been published, newly released data from the last
few months of 2023 indicate that nearly 1 in 5 abortions across the
Nation (or roughly 17,000 per month) are medication abortions accessed
via telehealth. \14\ New data indicates that in addition to traveling
to Massachusetts for care, many patients are also being given care
under the Massachusetts Shield Law without ever traveling to the
Commonwealth. Telehealth medication abortions by providers utilizing
shield law protections, such as those enshrined in Massachusetts law,
averaged 8,000 per month from October to December 2023, comprising
nearly half of all telehealth abortions. \15\ Massachusetts providers
are utilizing these groundbreaking shield law protections to ensure
patients can receive abortion care, regardless of their location. \16\
---------------------------------------------------------------------------
\13\ Massachusetts Department of Public Health, ``Abortion Tables
(2022)'', https://drive.google.com/file/d/
1Onw0uKtPAn1gjh98N33TOpY3TCWdia6I/view?usp=sharing ; See also,
``Monthly Abortion Provision Study'', Guttmacher Institute, https://
www.guttmacher.org/monthly-abortion-provision-study (last visited May
1, 2024).
\14\ ``#WeCount Report: April 2022 to December 2023'', Society of
Family Planning (May 14, 2024), https://societyfp.org/wp-content/
uploads/2024/05/WeCount-report-6-May-2024-Dec-2023-data--Final.pdf.
\15\ Id.
\16\ Based on conversations between Reproductive Equity Now with
providers offering telehealth abortion care through the Massachusetts
Shield Law conducted on April 22, 2024, telehealth abortion providers
operating under the Massachusetts Shield Law estimate conservatively
that 3,500 medication abortions are provided each month by
Massachusetts clinicians, primarily to patients located in States with
severe abortion restrictions or bans.
---------------------------------------------------------------------------
Our work to protect patients, providers, and all those involved in
abortion access in Massachusetts has not stopped at passing
legislation. Immediately after the passage of the shield law,
Reproductive Equity Now began to field questions from providers about
its impact, their risks, and how to protect themselves and their
families. Their confusion and concern made it clear that we needed to
stand up a resource to connect them with pro bono services.
Reproductive Equity Now partnered with the Massachusetts Attorney
General's Office, the ACLU of Massachusetts, and five private law firms
across the State--Foley Hoag, Goodwin Procter, Goulston & Storrs,
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, and Ropes & Gray--to
launch the Abortion Legal Hotline--a free and confidential resource for
patients and providers to learn more about their rights to provide or
obtain care. This hotline now offers live translation services, and to
date, we have trained over 150 lawyers who stand ready to provide legal
analysis and support to callers. Since the hotline was launched last
year, its website has been viewed over 4,300 times and it has helped
over 120 callers, many of which were providers, enabling them to
continue to serve countless patients across the Commonwealth and
beyond.
Barriers to Care Remain in Massachusetts
Even as people come to Massachusetts for care, patients in our
State are still being turned away. And that is because there is a big
difference between the legal right to reproductive health care and a
person's ability to actually access that care. Patients continue to
travel to Massachusetts to seek abortion care, and preliminary data
suggests the number of patients traveling to Massachusetts is
increasing. In 2022, the year Roe fell, there was a 16 percent increase
in the number of out-of-State patients receiving abortion care in
Massachusetts, with 792 out-of-State patients documented in 2021
compared to 920 out-of-State patients in 2022, accounting for just over
5 percent of all abortions in Massachusetts in 2022. \17\ State data
does not capture where out-of-State patients are traveling from.
Similarly, a study by researchers at Brigham and Women's Hospital, the
Harvard T.H. Chan School of Public Health, and the ASPIRE Center for
Sexual and Reproductive Health at Planned Parenthood League of
Massachusetts estimated that in the first 4 months post-Dobbs, our
State saw a 37 percent increase in patients from out of State--a number
we expect to only grow. \18\ Researchers reported the increase was
driven largely by people outside of New England, with a notable number
of patients traveling from Texas. \19\ This data indicates that
Massachusetts' health care system is facing new strain under the influx
of patients, as our clinics are contending with more patients and
appointments than ever before, Massachusetts abortion funds are seeking
to fund exponentially more care. This demands continued bold investment
to support our patients in Massachusetts.
---------------------------------------------------------------------------
\17\ Massachusetts Department of Public Health, ``Abortion Tables
(2022)'', https://drive.google.com/file/d/
1Onw0uKtPAn1gjh98N33TOpY3TCWdia6I/view?usp=sharing.
\18\ Brianna Keefe-Oates, et al., ``Use of Abortion Services in
Massachusetts After the Dobbs Decision Among In-State vs. Out-of-State
Residents'', Jama Open Access (Sept. 6, 2023), https://jamanetwork.com/
journals/jamanetworkopen/fullarticle/2808962.
\19\ Jessica Bartlett, ``Number of Out-of-State Travelers Seeking
Abortions at Mass. Planned Parenthood Grew 37% After Dobbs'', The
Boston Globe (Sept. 6, 2023, 6:55 p.m.), https://www.bostonglobe.com/
2023/09/06/metro/number-out-of-state-travelers-seeking-abortions-mass-
grew-by-37-percent-after-dobbs/.
---------------------------------------------------------------------------
Access deserts, or areas where in-person abortion clinics are more
than 50 miles away, still exist throughout Massachusetts--particularly
for in-clinic abortion care in Western and Southeastern Massachusetts.
Travel and transportation barriers to abortion appointments persist,
highlighting that the reproductive justice crisis is also a transit and
economic justice crisis. And restrictions on abortion throughout
pregnancy continue to send patients out of State for care. Low-income,
communities of color, LGBTQ people, and young people continue to face
the steepest barriers to abortion.
Meanwhile, the Commonwealth is facing a critical juncture with
regard to addressing a worsening maternal mortality and morbidity
crisis. Severe maternal morbidity nearly doubled in Massachusetts from
2011 to 2020, with Black mothers experiencing the worst rates of
complications. \20\ Additionally, with just one free-standing birth
center located in Western Massachusetts compared to 400 across the
country, out-of-hospital birthing options are few and far between,
eliminating a real ``choice'' in birth setting. \21\ And while the
State may be a national leader with regard to securing abortion access,
Massachusetts ranks 32nd in the Nation with regard to our integration
of midwifery care into our health care system, \22\ despite research
proving that the midwifery model of care can improve birthing
experiences, lower cesarean rates, lower rates of premature birth and
infant mortality, increase breastfeeding rates, and more. \23\
Licensing Certified Professional Midwives under a Massachusetts Board
of Midwifery is a critical way to unlock a key midwife workforce
specifically trained in out-of-hospital births, improve access to
tangible choice of birth settings, and expand maternity care providers.
Even in hospital settings, hospitals with a higher proportion of
midwife-attended births in Massachusetts were more likely to see
shorter inpatient stays, lower cesarean and episiotomy rates, and lower
spending on maternity services. \24\
---------------------------------------------------------------------------
\20\ Massachusetts Department of Public Health, ``Data Brief an
Assessment of Severe Maternal Morbidity in Massachusetts: 2011-2020''
(July 2023), https://www.mass.gov/doc/an-assessment-of-severe-maternal-
morbidity-in-massachusetts-2011-2020/download.
\21\ Shira Schoenberg, ``Hoping To Deliver at a Massachusetts
Birth Center? Good Luck'', Public Commonwealth Magazine (Nov. 20,
2022), https://commonwealthmagazine.org/health-care/hoping-to-deliver-
at-a-massachusetts-birth-center-good-luck/.
\22\ Massachusetts Health Policy Commission, ``Certified Nurse
Midwives and Maternity Care in Massachusetts Report Findings'' (Oct. 6,
2021) https://www.mass.gov/doc/certified-nurse-midwives-and-maternity-
care-in-massachusetts-1062021/download.
\23\ Kathleen Sebelius and Tommy Thompson, ``If We Want To Save
Black Mothers and Babies, Our Approach to Birthing Care Must Change'',
Time Magazine (Apr. 13, 2023, 7:00 A.M.), https://time.com/6270915/
black-mothers-childbirth-care-midwife/.
\24\ Massachusetts Health Policy Commission, supra n. 22.
---------------------------------------------------------------------------
The right to reproductive health care, including care for
pregnancy, delivery, abortion, and miscarriage care, is not a real
right unless every individual is able to safely access that care with
autonomy and dignity. That right must include the right to choose where
and how to give birth. Just as we affirm a pregnant person's choice
about whether and when to carry a pregnancy to term, we must also
affirm their choice of maternity care provider and birth setting.
Abortion access is intrinsically connected to maternal health, and
we cannot address these crises in a silo. Especially when more than 30
anti-abortion centers, or so-called ``crisis pregnancy centers''
throughout Massachusetts continue to spew medical disinformation,
dissuading patients from accessing abortion and putting public health
at serious risk. \25\ These facilities, which outnumber legitimate
abortion providers in the State by more than double, \26\ purport to be
full-spectrum reproductive health clinics, but actually exist to
dissuade people from accessing abortion, often using deceptive
practices. In Massachusetts, one of these centers, Clearway Clinic in
Worcester, is currently facing a lawsuit for misdiagnosing a patient's
ectopic pregnancy, forcing her to later undergo emergency life-saving
surgery that resulted in the loss of a fallopian tube. \27\
---------------------------------------------------------------------------
\25\ Frequently, AACs are religiously affiliated and do not
provide abortion or contraception or make referrals for abortion or
contraceptive care, though some do provide pregnancy tests, STI
testing, and ultrasounds. See Melissa N. Montoya, et al., ``The
Problems With Crisis Pregnancy Centers: Reviewing the Literature and
Identifying New Directions for Future Research'', Int'l Journal of
Women's Health (June 8, 2022), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC9189146/.
\26\ ``Reproductive Equity Now'', New England Abortion Care Guide,
https://reproequitynow.org/abortioncareguide (last visited May, 28,
2023).
\27\ Praveena Somasundaram, ``Clinic Missed Ectopic Pregnancy
Signs, Endangered Woman's Life, Suit Says'', Washington Post (July 3,
2023, 3:33 a.m.), https://www.washingtonpost.com/nation/2023/07/03/
crisis-pregnancy-center-lawsuit-massachusetts/.
---------------------------------------------------------------------------
As anti-abortion extremists become more creative with their attacks
by the day, reproductive health care advocates must also wear new hats,
including as digital privacy experts. The State and Federal Government
can and must do more to protect abortion providers and patients'
location data and personal information before it is weaponized by
hostile actors in other States. Efforts to criminalize abortion care
are ever-evolving, and prosecutors and bounty hunters alike are well
aware of the opportunity to use digital information to bolster their
evidence. Already, we have seen data brokers use location information
to create heat maps of where people visiting Planned Parenthood clinics
came from, how long they stayed at the clinic, and where they went
afterwards. \28\ While our statute prohibits Massachusetts law
enforcement agencies from engaging in hostile out-of-State
investigations, \29\ it does not prohibit law enforcement or
prosecutors in other banned States from purchasing location data, which
will allow them within minutes to identify every single phone--and
therefore every single patient--that may have traveled across State
borders to seek abortion care. As the cellphone location market remains
unregulated, the widespread availability of granular cellphone location
information enables anyone with a credit card--even an anti-abortion
extremist thousands of miles away--to track people seeking abortion
care in the Commonwealth. This exposes people seeking care from gravely
serious threats to their personal safety and puts health care providers
at risk of personal harm. We must pass the Location Shield Act in
Massachusetts and Senator Warren's Health and Location Data Protection
Act in Congress to secure digital privacy before location information
is weaponized to criminalize care provided in Massachusetts.
---------------------------------------------------------------------------
\28\ Joseph Cox, ``Data Broker Is Selling Location Data of People
Who Visit Abortion Clinics'', Vice (May 3, 2022, 12:46 p.m.), https://
www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-
safegraph-planned-parenthood.
\29\ 2022 Mass. Acts ch. 127 20.
---------------------------------------------------------------------------
Amidst National Threats, Massachusetts Is Poised To Play a Leading Role
in Protecting Abortion Access
Anti-abortion extremists' end goal is not to ban abortion in 21
States; they want to ban abortion nationwide. Donald Trump, the leading
Republican candidate for President, has bragged about his role in
overturning Roe v. Wade, \30\ said that pregnant people should be
punished for accessing abortion care, \31\ and hinted that he will sign
a national abortion ban if elected president this November. \32\ Just
last week, Trump suggested that he would be open to restricting access
to contraception nationwide. \33\ And after the Alabama Supreme Court
ruled this April that frozen embryos are ``extrauterine children,''
effectively ending in vitro fertilization in the State, it's clear that
the anti-abortion movement will use fetal personhood statutes to
attempt to ban not only abortion nationwide, but assisted reproduction,
too. \34\
---------------------------------------------------------------------------
\30\ ``Trump Says He's Proud of Role in Overturning Roe v. Wade'',
CBS News (Apr. 8, 2024), https://www.cbsnews.com/video/trump-says-hes-
proud-of-role-in-overturning-roe-v-wade/.
\31\ Pema Levy, ``Trump Says States Could Prosecute Women for
Abortions Under His Watch'', Mother Jones (Apr 30, 2024), https://
www.motherjones.com/politics/2024/04/donald-trump-abortion-
prosecutions/.
\32\ Michelle L. Price, ``Trump Suggests He'd Support a National
Ban on Abortions Around 15 Weeks of Pregnancy'' (Mary 20, 2024, 8:06
a.m.), AP News, https://apnews.com/article/trump-abortion-ban-15-weeks-
91a9e0ce87d11dff0fa761f327bd0566.
\33\ ``Trump Says He's `Looking at' Restricting Birth Control
Access'', MSNBC: All In (May 23, 2024), https://www.msnbc.com/all-in/
watch/trump-says-he-s-looking-at-restricting-birth-control-access-
211503685938.
\34\ Alander Rocha, ``Alabama Supreme Court Ruling Could End IVF
Treatments in State'', Alabama Reflector (Feb. 19, 2024, 2:43 p.m.),
https://alabamareflector.com/2024/02/19/alabama-supreme-court-ruling-
could-end-ivf-treatments-in-state/.
---------------------------------------------------------------------------
In a post-Roe world, Massachusetts has a critical role to play in
protecting against these attacks and advancing reproductive equity.
With strong legislative and executive partners, and an unwavering
congressional delegation, our State has the ability to go on offense to
protect and expand access to care. Advocates, elected officials, and
leaders in Massachusetts must work with partners in red, purple, and
blue States to ensure as many people are able to access the
reproductive health care they want and need in this ever-changing
abortion landscape. Our movement is strongest when we share strategies,
policy ideas, and playbooks across State lines, and Massachusetts--and
the New England region at large--can lead the way for reproductive
equity.
______
PREPARED STATEMENT OF KATHRYN FAY
Fellow, Physicians for Reproductive Health, and Physician, The Brigham
and Women's Hospital
May 29, 2024
Good afternoon, Senator Warren and Senator Markey. Thank you for
holding today's field hearing on abortion and for the opportunity to
speak with you today about access to critical care. My name is Dr.
Kathryn Fay and I use she/her pronouns. I am a board-certified,
fellowship trained, obstetrician and gynecologist specializing in
family planning. I provide full spectrum sexual and reproductive health
care, including abortion. As is typical of many in medicine, I
completed my training in other States, in my case Illinois and Utah.
Now, as a resident of Massachusetts, I bring a firsthand account of the
ways State policy supports or obstructs quality health care. I am here
today as a fellow with Physicians for Reproductive Health, a network of
physicians from across the country working to improve access to
comprehensive sexual and reproductive health care, and as a physician
at The Brigham and Women's hospital.
In Massachusetts I am able to provide care based on what patients
and I decide together is safest and healthiest for their lives using my
clinical training and following best medical practices without
political interference. Massachusetts has been and continues to be a
leader for access to reproductive health care. Prior to the Supreme
Court's decision in Dobbs, which overturned the constitutional right to
abortion, the Commonwealth of Massachusetts enacted laws establishing a
statutory right to abortion. Since the Dobbs decision, Massachusetts
has enacted additional legislation to further protect and increase
access to reproductive health care. These new laws make abortion care
more affordable by allowing State Medicaid funds to cover abortion and
requiring private health insurance plans to provide coverage for
abortion and abortion-related care without cost-sharing and protects
providers like me from investigations by other States for simply
providing safe, essential, necessary medical care. I list these
legislative changes because they are in contrast to my experience
working in Utah, which, prior to Dobbs, employed numerous tactics to
hinder or punish those seeking abortion care, policies which have only
grown more extreme in the interim.
I am grateful to live and practice medicine in a State that
supports the broad scope of sexual and reproductive health care,
including contraceptive care. In the past few months, I have cared for
people who needed life-saving abortion care to begin treatment for a
new cancer diagnosis and people who needed an abortion in the setting
of life-threatening hemorrhage. I have cared for people who sought
abortions in the setting of fetal anomalies, abusive partners, housing
instability, sexual assault, contraceptive failure; the indications are
endless and all of them are valid. However, we cannot ignore that the
Supreme Court's decision in Dobbs has wreaked havoc on the lives of
people across our country seeking care for similar reasons, and on the
clinicians who are doing their best to care for their communities.
There is no safe State as long as threats to sexual and reproductive
health care continues.
As States continue to ban abortion, patients are having to travel
farther and farther distances away from their homes and their
communities putting their health and lives at risk. I have cared for
people who traveled to Massachusetts with pre-viable ruptured
membranes, a diagnosis for which standard medical care is immediate
intervention because of the threat of maternal sepsis and hemorrhage.
Overall, there were an estimated 4,500 more abortions provided in
Massachusetts formal health care system in 2023 than in 2020, last year
1 in 15 people who received abortions in Massachusetts were from out of
State. \1\ \2\ I am consistently seeing patients from across the
country. I am grateful to be able to care for the people who make it to
me, but I can't help but think about all of the people who are unable
to make the expensive, complex, risk-laden journey to essential care
and have been forced to remain pregnant. I know people have been forced
to remain pregnant since Dobbs, and there are excellent data to show
the enduring harms of being denied a wanted abortion. The Turnaway
Study shows us that when a woman is denied an abortion it creates
economic hardships and insecurity that lasts for years, the financial
wellbeing and development of existing children is negatively impacted,
and the pregnant person is more likely to endure ongoing intimate
partner violence. \3\ For the patients who have the resources to
travel, at the very least, they are being forced to leave their support
systems and communities. This is unacceptable. Everyone deserves to
access care in their own community, in a manner that is best for them,
with people they trust.
---------------------------------------------------------------------------
\1\ Guttmacher, Monthly Abortion Provision Study, https://
www.guttmacher.org/monthly-abortion-provision-study.
\2\ Kaiser Family Foundation, Massachusetts Abortion Data, https:/
/www.kff.org/interactive/womens-healthprofiles/massachusetts/abortion-
statistics/.
\3\ ``The Harms of Denying a Woman a Wanted Abortion. Findings
From the Turnaway Study'', Advancing New Standards in Reproductive
Health (ANSIRH) University of California San Francisco, https://
www.ansirh.org/sites/default/files/publications/files/the-harms-of-
denying-a-woman-a-wanted-abortion-4-16-2020.pdf
---------------------------------------------------------------------------
As more States continue to ban or severely restrict access to
abortion the ripple effects will continue to impact other types of
essential health care harming the overall health and wellbeing of
people across the country. For example, other types of care we have
already seen impacted include: contraceptive care because of
intentionally vague language being misconstrued to limit access to
emergency contraception and intrauterine devices or IUDs; miscarriage
care as the treatments used to help manage a miscarriage are the same
used to provide an abortion; ectopic pregnancy care as health care
institutions and providers are worried about being held criminally
responsible for providing the emergency care patients need.
It is only nearly 2 years since the Dobbs decision and threats from
the courts continue. The Supreme Court is set to issue decisions this
summer in what will be two landmark cases impacting abortion care. The
Court's decision in FDA v. AHM will impact access to mifepristone, one
of two FDA approved medications used in medication abortion care. The
FDA first approved mifepristone in 2000 and today medication abortion
accounts for 63 percent of all U.S. abortions. \4\ Mifepristone is a
safe and effective medication that I rely on using for patient care
every day. Restrictions on mifepristone will not only have devastating
impacts on pregnant people's access to abortion care but also early
pregnancy loss and stillbirth management, among the other evidence-
based uses of mifepristone. Additionally, the Supreme Court is
considering whether EMTALA preempts Idaho's abortion ban in situations
in which abortion is required to stabilize an emergency medical
condition that would otherwise threaten serious harm to the pregnant
person's health. People should have access to abortion care without
barriers or delay, including in emergency circumstances. Likewise,
clinicians should be able to practice without performing the calculus
of what State law permits or what actions might threaten their medical
license, and instead focus on applying their medical training to
provide the necessary care that is right for patients. There are
countless stories of my colleagues in other States being forced to
navigate impossible situations that put patient safety and State
legislation at odds. \5\
---------------------------------------------------------------------------
\4\ Jones, R.K., Friedrich-Karnik A., ``Medication Abortion
Accounted for 63% of All U.S. Abortion in 2023--An Increase from 53% in
2020'', Guttmacher, https://www.guttmacher.org/2024/03/medication-
abortion-accounted-63-all-us-abortions-2023-increase-53-2020.
\5\ Grossman D., Joffe Carole, Kaller S., et al., ``Care Post-Roe:
Documenting Cases of Poor-Quality Care Since the Dobbs Decision'',
Advancing New Standards in Reproductive Health (ANSIRH) University of
California San Francisco, https://www.ansirh.org/sites/default/files/
2023-05/Care%20Post-Roe%20Preliminary%20Findings.pdf.
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Abortion restrictions only serve to burden and endanger patients
and clinicians, not make abortion any safer. These restrictions
represent a national movement that threatens health care. If not just
for the general moral good, I am here today advocating for the status
of care in Massachusetts. Since Roe, steady chipping away of sexual and
reproductive health rights has jeopardized justice for all. Dobbs was a
clear and devastating loss, but it does not represent an end point. I
worry about the loss of mifepristone, a Federal abortion ban, and
threats to contraception and assisted reproductive technology, hazards
that will transcend State lines. Abortion, without stipulation, is
life-saving, necessary, compassionate, essential health care.
Thank you for having me here today. I look forward to your
questions.
______
PREPARED STATEMENT OF CAROL ROSE
Executive Director, ACLU of Massachusetts
May 29, 2024
Chair Warren, Ranking Member Kennedy, and Members of the Committee,
thank you for holding this hearing and inviting me to testify. My name
is Carol V. Rose, and I am the Executive Director of the American Civil
Liberties Union of Massachusetts.
In post-Dobbs America, authoritarian politicians and civil
litigators in search of private bounties \1\ seek to control--and
plainly deny--reproductive health care and personal bodily autonomy by
expanding and misusing criminal and civil laws. \2\ At the same time,
the U.S. Supreme Court is considering two cases brought by extremists
seeking to restrict or even eliminate access to medication abortion and
to abortion care during medical emergencies. Massachusetts lawmakers
are working to shore up protections for reproductive freedom in our
State, but aggressive anti-abortion advocacy at the Federal level
nonetheless threatens the rights of all residents of the Commonwealth.
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\1\ Erin Coulehan, ``Abortion `Bounty' Laws in States Like Texas
and Oklahoma: How They Work'', Teen Vogue (July 7, 2022), https://
www.teenvogue.com/story/abortion-bounty-laws.
\2\ Interactive Map: U.S. Abortion Policies and Access After Roe,
Guttmacher Institute (May 15, 2024), https://states.guttmacher.org/
policies/-gl=1*1osd3uo*-ga*MTEzNDI1MTE2Ni4xNjgw
MTAzNjY5*-ga-PYBTC04SP5*MTY4NjkyNzg4OC41NS4xLjE2ODY5Mjc4OTEuMC4wLjA.
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Just 1 month after the Supreme Court overturned Roe v. Wade,
Massachusetts lawmakers passed a ``shield law'' to offer legal
protections to abortion providers, patients, and helpers in our State.
\3\ An Act Expanding Protections for Reproductive and Gender-Affirming
Care takes steps to protect providers' professional licenses and
malpractice insurance, while also prohibiting extradition to other
States for those who provide lawful care in Massachusetts and ensuring
our State courts do not become a venue for hostile-State claims. \4\ To
help people understand their rights under the new State law,
Massachusetts Attorney General Andrea Campbell--together with the ACLU
of Massachusetts, Reproductive Equity Now, Women's Bar Foundation, and
several law firms--launched the Abortion Legal Hotline in January 2023.
\5\ This is a free and confidential resource that connects
Massachusetts-based health care providers, helpers, and patients
obtaining care in the State with legal advice and resources about
access to abortion and other forms of reproductive health care.
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\3\ Alison Kuznitz, ``Massachusetts Abortion Protections Bill,
Shielding Providers and Patients, Signed Into Law by Gov. Charlie
Baker'', MassLive (July 29, 2022), https://www.masslive.com/politics/
2022/07/massachusetts-abortionprotections-bill-shielding-providers-and-
patients-signed-into-law-by-gov-charlie-baker.html.
\4\ An Act Expanding Protections for Reproductive and Gender-
Affirming Care, Chapter 127 of the Acts of 2022 (July 29, 2022),
https://malegislature.gov/Laws/SessionLaws/Acts/2022/Chapter127.
\5\ Abby Patkin, ``With New Mass. Hotline, Free Abortion Legal
Advice Is Just a Call Away'', Boston.com (January 30, 2023), https://
www.boston.com/news/health/2023/01/30/massachusetts-abortion-legal-
hotline-launch-reproductiverights-access/.
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Two months later, in response to a Federal court ruling out of
Texas in a case challenging mifepristone access nationwide,
Massachusetts Governor Healey announced several steps to protect access
to medication abortion in the Commonwealth. She directed the University
of Massachusetts and health care providers to purchase and stockpile
approximately 15,000 doses of mifepristone. Governor Healey also issued
an Executive order confirming that the 2022 shield law applies to
medication abortion, including mifepristone, \6\ and the Department of
Public Health and Board of Registration in Medicine quickly issued
implementing guidance. \7\ Collectively, these actions help to ensure
that providers can continue to prescribe and dispense mifepristone in
Massachusetts.
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\6\ Executive Order 609, ``Protecting Access to Medication
Abortion Services in the Commonwealth'', (April 10, 2023), https://
www.mass.gov/doc/protecting-access-to-medicated-abortion/download.
\7\ Board of Registration in Medicine, ``Guidance Implementing
Executive Order 609 Regarding Reproductive Health Medications'', (April
10, 2023), https://www.mass.gov/news/guidance-implementing-executive-
order-609-regardingreproductive-health-medications.
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Since the Supreme Court overturned Roe, Massachusetts lawmakers at
every level of Government have taken bold, timely steps to protect
access to reproductive health care in our Commonwealth. However, anti-
abortion judges and politicians have made clear that they do not intend
to stop at ending Federal constitutional protections for abortion care.
Their goal is to eliminate access to abortion and other forms of
reproductive health care in all 50 States, including in the
Commonwealth. This anti-democratic cadre remains intent on banning
abortion and other essential health care nationwide, threatening core
Massachusetts values, as well as State laws and policies that have been
carefully considered and adopted by our State's elected leaders, and--
most importantly--fundamental access to reproductive health care and
bodily integrity for the people of the Commonwealth.
We are alarmed by authoritarian politicians in Congress who are
pushing Federal policies to restrict the reproductive freedoms we have
fought so hard to protect here in the Commonwealth. Anti-abortion
politicians at the Federal level have not been covert about their plans
to ban abortion nationwide. A national abortion ban would pose a direct
and dire threat to reproductive freedom in Massachusetts, and anti-
abortion politicians in Congress have deployed a variety of tactics in
service of their campaign to ban abortion nationwide.
One key tactic proposed by anti-abortion extremists in Congress is
a proposed national 15-week abortion ban. If enacted, a nationwide
abortion ban like the one proposed in Congress \8\ would make all
abortions in every State, including Massachusetts, illegal after 15
weeks with only limited exceptions. This extreme bill goes even further
by subjecting doctors and health care providers to criminal penalties
for failure to comply with the ban.
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\8\ Graham Introduces Legislation to Protect Unborn Children,
Bring U.S. Abortion Policy in Line with Other Developed Nations, U.S.
Senator Lindsey Graham (September 13, 2022), https://
www.lgraham.senate.gov/public/index.cfm/2022/9/graham-introduces-
legislation-to-protect-unborn-childrenbring-u-s-abortion-policy-in-
line-with-other-developed-nations.
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It is important to highlight the harms of an enacted national
abortion ban on the people of Massachusetts. In the nearly 2 years
since Roe was overturned, abortion bans in dozens of States across the
country have created chaos and suffering for patients and providers. In
States with abortion bans, clinics providing essential health care have
been forced to close, leaving millions of people without access to
abortion care as well as other reproductive health care. \9\ Patients
have been denied critically needed emergency abortion care, creating
serious risks to their health and against their doctors' medical
judgment. \10\ Under a national ban, people in Massachusetts would be
forced to carry pregnancies against their will, and doctors and health
care providers would have to choose between providing essential health
care and potentially facing criminal charges and even jail time.
Forcing someone to carry a pregnancy against their will has life-
altering consequences, from enduring the health risks of continuing a
pregnancy and childbirth, to making it harder to escape poverty,
achieve education or career goals, and making it more difficult to
leave an abusive partner. These consequences fall disproportionately on
communities of color, people living on low incomes, undocumented
immigrants, young people, LGBTQ people, and people with disabilities.
These harms, especially the serious health risks of being forced to
give birth, fall hardest on Black women, who are already three times
more likely than Wwhite women to die during childbirth or shortly
after. \11\
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\9\ See Marielle Kirstein, et al., ``100 Days Post-Roe: At Least
66 Clinics Across 15 U.S. States Have Stopped Offering Abortion Care'',
Guttmacher Inst. (October 6, 2022), https://www.guttmacher.org/2022/10/
100-days-postroe-least-66-clinics-across-15-us-states-have-stopped-
offering-abortion-care.
\10\ See, e.g., NWLC Files EMTALA and Sex Discrimination
Complaints on Behalf of Mylissa Farmer, Nat'l Women's L. Ctr. (November
8, 2022), https://nwlc.org/resource/nwlc-files-emtala-and-sex-
discriminationcomplaints-on-behalf-of-mylissa-farmer/; Caroline
Kitchener, ``Two Friends Were Denied Care After Florida Banned
Abortion. One Almost Died'', Wash. Post (April 10, 2023, 6:00 a.m.),
https://www.washingtonpost.com/politics/2023/04/10/pprom-florida-
abortion-ban/; Sam Karlin, ``Louisiana Woman Who Was Denied an Abortion
for a Fetus Without a Skull Gets Procedure in New York'', The Advocate
(September 14, 2022), https://www.theadvocate.com/baton--rouge/news/
louisiana-woman-who-was-denied-an-abortion-for-a-fetuswithout-a-skull-
gets-procedure/article-b23b2b48-3458-11ed-bd50-27875e9118ec.html.
\11\ See Priya Krishnakumar and Daniel Wolfe, ``How Outlawing
Abortion Could Worsen America's Maternal Mortality Crisis'', CNN (June
24, 2022), https://www.cnn.com/2022/05/10/us/maternal-mortality-roe-
wade-abortionaccess/index.html.
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And while the current proposed bill for a national abortion ban
includes very narrow exceptions for rape or incest, or for the life and
health of the pregnant person, we've seen already in States with
abortion bans how little these exceptions do to ensure that people can
get essential health care. We've heard heartbreaking stories of women
who were denied medically necessary abortion care and faced life-
threatening consequences, despite their State bans having narrow life
and health exceptions. \12\ It is cruel and unfair to expect survivors
of sexual assault or incest, or someone in the middle of a medical
emergency, to plead for permission to access the care they need and
their doctors authorize. Everyone should be able to get the abortion
and reproductive health care they need, when they need it.
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\12\ See, e.g., Cox v. Texas, Center for Reproductive Rights
(December 12, 2023), https://reproductiverights.org/case/cox-v-texas/;
Zurawski v. State of Texas, Center for Reproductive Rights (March 6,
2023), https://reproductiverights.org/case/zurawski-v-texas-abortion-
emergency-exceptions/; Medical Emergency Exceptions to State Abortion
Bans: Idaho, Tennessee, and Oklahoma, Center for Reproductive Rights
(September 12, 2023), https://reproductiverights.org/case/emergency-
exceptions-abortion-bans-idaho-tennessee-oklahoma/.
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Not content with a national abortion ban at 15 weeks, extremists in
Congress are also pushing radical Federal legislation that would give
legal rights to embryos and fetuses. These efforts are just the latest
in a long history of anti-abortion extremists attempting to strip
people of their reproductive rights by expanding legal rights for
embryos and fetuses. For decades, anti-abortion politicians have
incorporated this so-called ``personhood'' language into State laws.
\13\ Extremists in Congress have expanded the reach of this threat to
States with protections for abortion and other forms of reproductive
health by pushing Federal legislation, including the Life at Conception
Act. \14\ This extreme piece of Federal legislation would extend rights
to embryos and fetuses with the intent to make all abortion illegal
nationwide, including in Massachusetts where such care is protected.
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\13\ See Megan Messerly, `` `Scratching Their Heads': State
Lawmakers Take a Closer Look at Personhood Laws in Wake of Alabama
Ruling'', Politico (February 29, 2024), https://www.politico.com/news/
2024/02/29/states-fetus-personhoodalabama-ivf-00143973#:.
\14\ H.R.431--118th Congress (2023-2024): Life at Conception Act,
(January 20, 2023), https://www.congress.gov/bill/118th-congress/house-
bill/431.
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But that is not all. As is often true of policies that ban or
restrict abortion care, so-called ``personhood'' laws also threaten to
impact the ability to access other forms of reproductive health care,
including contraception, infertility treatment, and miscarriage care.
Purporting that embryos and fertilized eggs are ``people'' under the
law would cause chaos and confusion that would disrupt access to many
kinds of essential health care in the Commonwealth and nationwide.
The strategy to ban abortion in all 50 States doesn't end with
Federal legislation. Extremist politicians and their supporters have
even threatened to attempt a back-door national abortion ban,
circumventing Congress, by misusing a 150-year-old law known as the
Comstock Act.
The Comstock Act, named after ``a prominent anti-vice crusader who
believed that anything remotely touching upon sex was . . . obscene,''
\15\ was passed in 1873--less than a decade after the end of the Civil
War and nearly 50 years before the ratification of the 19th Amendment.
The Comstock Act restricts using the mail and common carriers to send
and receive certain ``obscene'' items. Anti-abortion extremists claim
that it is a national abortion ban already on the books, just waiting
to be enforced by a radical anti-abortion President. This view of the
Comstock Act is wrong. For decades, the Department of Justice and every
court of appeals to consider the issue have held that the Comstock Act
only applies in the context of unlawful abortions. The only court to
ever conclude differently is the district court in Alliance for
Hippocratic Medicine v. FDA, the anti-abortion plaintiffs' hand-
selected jurist--chosen for the purpose of obtaining rulings that
advance their radical agenda.
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\15\ Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 70 n.19
(1983).
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Threatening to misuse the Comstock Act is thus another effort by
anti-abortion extremists to manipulate the law in service of their goal
of banning abortion in all 50 States. If anti-abortion extremists get
their way, the Comstock Act could be misused to ban the shipping of any
medicines and medical supplies used for abortion, contraception, IVF,
and miscarriage care, threatening access to reproductive health care
nationwide--even in Massachusetts and other States where reproductive
rights are protected.
By pushing policies to override State protections for abortion and
other reproductive health care, authoritarian forces clearly seek to
ban access to contraception and abortion care nationwide. Massachusetts
elected leaders have, time and again, upheld the will of the voters by
taking bold action to protect the bodily integrity of our people,
including access to abortion care, contraception, miscarriage care, and
IVF. We applaud tireless efforts by Massachusetts elected officials to
defend and preserve the right to body integrity free from Government
interference, and to ensure a future where every person in every State
can access the reproductive health care they need.
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