On Monday, Massachusetts lawmakers passed an act which repeals a 173-year-old state law that banned abortions. By repealing that ban, Massachusetts' NASTY Women Act will aim to protect women's access to abortion in the state no matter what happens to federal abortion laws. In other words, Massachusetts lawmakers are preparing for what would happen if Roe v. Wade were overturned in coming years.
The NASTY Women Act, also known as the Negating Archaic Statutes Targeting Young Women Act, repeals a state law that previously prevented women from "procuring a miscarriage," aka getting an abortion. Because of the federal statute established by Roe v. Wade, the abortion ban was made void, but Massachusetts State Senate President Harriette Chandler explained to Time that Supreme Court Justice Anthony Kennedy's imminent retirement has hastened the desire to get a bill passed.
“I think people are beginning to realize these are strange times we live in," Chandler said. "Nothing is impossible, and we’ve got to have a ‘plan B.’ If these laws are enforced, what do we do? We’re not willing to sit back and say, ‘Well, it’s not going to happen here.’ The word for that is denial.”
Kennedy's retirement, as well as Donald Trump's nomination of Brett Kavanaugh to replace him on the Supreme Court bench, has raised questions over what would happen to Roe v. Wade with five staunch conservatives sitting on the bench.
Rebecca Hart Holder, the president of NARAL Pro-Choice Massachusetts, applauded the proactive move made by Massachusetts lawmakers. “I think there’s a perception that we’re always going to be safe," Holder said to Time. "We have these rights, they’re taken for granted, and we don’t have to be as vigilant as other states that you perceive as posing a clear and present danger to abortion access. But the reality is any state can have a threat to abortion care.”
Though the move by Massachusetts lawmakers will ensure that it's that much more guaranteed for women to always have access to safe reproductive care, Massachusetts isn't exactly the state that's most at risk to lose abortion rights, should Roe v. Wade be overturned. As a result, anti-abortion groups in Massachusetts are spending less time trying to ban abortion and more time working on alternative strategies.
David Franks, the chairman of the board for Massachusetts Citizens for Life, said to Time, “Our game plan is to more vigorously pursue education on this and jumpstart a civic conversation about the dignity of every human life. If Roe were to be overturned, every state in the union would have to have this conversation. We are gearing up for that with educational initiatives."
Of course, several things would need to happen prior to Roe v. Wade being overturned. First, Kavanaugh would have to be appointed to the Supreme Court bench (he still has to go through the questioning and confirmation hearings), and then Kavanaugh would have to vote to overturn Roe, when the case was presented to the court (and assuming the four other conservative justices on the bench voted to overturn it, too).
Though there's significant fear that Kavanaugh would overturn Roe if given the opportunity, Kavanaugh has been evasive about his opinions of the precedent, himself. For example, during Kavanaugh's 2006 confirmation hearing to the D.C. circuit, Kavanaugh said that he would "follow Roe v. Wade faithfully and fully," because it was the "binding precedent of the Supreme Court."
But once Kavanaugh is on the Supreme Court, he would no longer have to follow Supreme Court precedent as a formality. Rather, he would have the opportunity to change precedent. During the 2006 hearing, when asked about his own opinions of Roe, Kavanaugh said, "I don’t think it would be appropriate for me to give a personal view of that case."
With the passing of the NASTY Women Act, Massachusetts is the first state to respond to the potential overturning of Roe v. Wade with preventative legislation. Other states have begun to move down a similar avenue. New York Governor Andrew Cuomo is looking to write Roe v. Wade into the state constitution. In contrast, other states are moving in the exact opposite direction, with 22 states predicted as highly likely to ban abortion (19 of which have passed a cumulative 63 restriction to abortion rights and access), should Roe be overturned.