Gloucester Daily Times Debate on Abortion (55), [October 15], 1986

Restore the Proper Balance [Question No. 1]

My View

(invitational column)

(John Rankin lives in Rockport with his wife and three sons, and serves as executive director of the New England Christian Action Council)

Question No. 1 on the Nov. 4 ballot reads:

“No provision of the Constitution shall prevent the general court from regulating or prohibiting abortion unless prohibited by the United States Constitution, nor shall any provision of the Constitution require public or private funding of services or facilities therefore, beyond that required by the United States Constitution. The provisions of this article shall not apply to abortions required to prevent the death of the mother.”

In order to gain a balanced understanding of this amendment, we need to analyze the historical, political and judicial variables at play, and we need to examine its possible ramifications. Then I will offer some personal observations.

In 1975, the U.S. Congress passed the Hyde Amendment which prohibits the use of federal funds for abortion, excepting the rare instances where the mother’s life is in jeopardy from a continued pregnancy. This amendment has been ratified every year since. And thus legislation was upheld by the very same U.S. Supreme Court which had originally legalized abortion in the 1973 Roe v. Wade ruling. The rationale employed here stated that although abortion is a legal option, there does not exist a constitutional right to expect tax dollars to fund it.

On that basis, shortly thereafter, the Massachusetts Legislature (properly known as the General Court in the state’s constitution) passed an identical bill for state Medicaid monies. But Gov. Michael Dukakis vetoed it. When Gov. Edward King (elected in 1978) had an opportunity, he signed into law the same legislation. Very quickly the Massachusetts Supreme Judicial Court (SJC) overruled the new law as unconstitutional, linking abortion to the funding of “other services related to childbirth.” This was the 1981 Moe v. Secretary of Administration and Finance decision.

Since then, pro-life groups led by Massachusetts Citizens for Life (MCFL) have sought to bring the question to the public by way of referendum. The Senate and House meeting in Constitutional Convention, in successively elected legislatures, committed it to Nov. 4th’s ballot by a nearly 2-1 margin. The language of the amendment is largely determined by the language of Moe, making certain that it frames the question in precise constitutional terms. Thus, the amendment’s motivating drive is to restore the authority for regulating abortion to the Legislature, an authority overruled by the SJC in 1981. And in order for the Legislature to overrule the SJC, it must amend the state constitution with Question No. 1 on the Nov. 4 ballot.

The powers of the Legislature are only restricted by the U.S. Constitution, which currently allows abortion according to Roe v. Wade. In view of that, the only power that the Legislature can presently regain pertains to matters of prohibiting or otherwise regulating the use of state funds for abortion. Such capacities involve the ability to deny state funds for all abortions (except where the woman’s life is in danger), to regulate the medical facilities and personnel regarding second and third trimester abortions, and so withdraw funds and other legislative support that currently helps private insurance companies underwrite abortion coverage.

In immediate terms, the amendment, if passed, will change nothing. However, if the Legislature so decides, it may regulate according to its restored powers as outlined above. But to accomplish this, it will need to override a certain veto by present Gov. Dukakis (who after being defeated by King in 1978, won in 1982, an dis certain to win reelection this fall). The ability to override such a veto is uncertain.

In the long term, effects should be determined at the federal level. If the U.S. Supreme Court continues its “construcitonist” or “judicial restraint” philosophical move, it could overturn Roe v. Wade and throw the issue back to the state legislatures. If that were t happen, Massachusetts would automatically return to a pre-1973 status (interpretations vary, but this view seems to hold sway). Thereafter, if any re-liberalization of abortion laws were to occur, it would have to happen in the Legislature with accountability to the electorate, and not by judicial fiat which Roe and Moe represent.