Mass. Senate moves to protect abortion providers from out-of-state court judgments and investigations

Massachusetts abortion providers and anyone who assists with an abortion would have more protection from out-of-state lawsuits and investigations under a budget amendment approved by the state Senate this week.

The proposed changes would make it more difficult to collect a fine imposed by a court in Texas, for example, file a subpoena from outside Massachusetts and would shield provider licenses and insurance rates from the impact of out-of state judgments.

The protections would apply to anyone caring for or aiding transgender patients as well.

Senate Democrats in the state pitched the measures as a bulwark against state laws around the country that aim to ban abortion. State Sen. Cindy Friedman, of Arlington, said Massachusetts must not let providers here become the targets of residents trying to enforce abortion limits in Texas, Oklahoma, Missouri or other states.

“Massachusetts must be ready and be proactive so that if somebody from another state sues someone in our state for providing legal health care that we have the tools in place to protect them,” Friedman said. “It’s outrageous to me that it’s legal to have bounty-hunting provisions.”

No senators spoke in opposition to the proposal during debate Wednesday.

Doctors, physician assistants, pharmacists, nurses, psychologists and social workers would all be insulated from licensing consequences and increases in their medical malpractice insurance costs based on lawsuits filed against them in other states.

Massachusetts courts would be barred from ordering anyone in the state to testify or produce documents for lawsuits involving an abortion or transgender care, and judges could not issue a summons in a case concerning those health care services unless the alleged offense would violate a Bay State law.

Out-of-state residents who sue a Massachusetts provider would have to persuade an out-of-state judge that he or she has jurisdiction over an abortion performed in Massachusettts. If the out-of state resident wins, they’d have to come to Massachusetts to make that same argument in a Bay State court.

The Senate proposal follows efforts in Connecticut, California and Michigan to insulate abortion activity and providers within state boundaries. Jessie Rossman, managing attorney with the ACLU of Massachusetts, said these legal efforts make sense, especially as the Supreme Court appears poised to overturn Roe, the landmark ruling that provides a constitutional right to end a pregnancy. .

“There are many things that I would have thought were remote if you asked me two or three years ago” she said, “that we have seen become a reality as more and more states that are hostile to this kind of critical medical care are passing laws that attempt to interfere with access to this care.”

The House has not considered a similar package of protections. Massachusetts Gov. Charlie Baker does not typically comment on legislation until it reaches his desk.

The Mass. Senate language does not go as far as Connecticut in an effort to avoid violating the Full Faith and Credit clause of the U.S. Constitution.

That clause says each state must recognize the decisions of courts in other states. Friedman said she believes the Senate measure does not conflict with this constitutional requirement, but aims to make it harder to enforce out-of-state judgments in Massachusetts.

Some legal scholars say Massachusetts is wading into some complex and murky territory. State efforts to buffer providers and residents in states with strong abortion protections could trigger a whole new wave of abortion-related litigation.

“A lot of these issues will need to get hashed out in the courts,” said Dwight Duncan, who teaches constitutional law at the University of Massachusetts School of Law. “I don’t think the constitutionality of this proposed law is a simple matter.”

Duncan, who also serves as an advisor for Massachusetts Citizens for Life, noted a section of the Senate amendment that says the governor of Massachusetts could not extradite anyone charged with an out-of-state crime unless that act is also illegal in Massachusetts. He said it’s not clear the governor has the authority to refuse that extradition request.

The Senate amendment was drafted in cooperation with abortion providers who applauded its passage.

“Now is the time to use every legislative tool to protect and expand access to reproductive health care in Massachusetts,” said Dr. Nate Horwitz-Willis, executive director of the Planned Parenthood Advocacy Fund of Massachusetts in a statement, “which will be critical to ensuring reproductive freedom in a post-Roe world.”

With reporting from State House News Service reporter Chris Lisinski