By MIGUEL A. MALDONADO JR., ELLA KLAHR BUNNELL, MYRAIDA MELENDEZ and IVAN ESPINOZA-MADRIGAL
BOSTON — Coverage of June’s U.S. Supreme Court decision in Dobbs v. Jackson Whole Women’s Health has focused on its devastating impact on reproductive healthcare access in states with the most restrictive laws, such as those in the South and Midwest.
But Massachusetts is by no means immune from the aftermath of the decision. Even here, Dobbs will impact women and other pregnant people in far-reaching ways. Threats of interstate criminal prosecutions will chill both healthcare workers and patients and undermine access to care, particularly for undocumented immigrants and other vulnerable populations.
In Massachusetts, a recently enacted executive order bars the Governor’s Office from cooperating with extradition attempts from anti-choice states pursuing criminal charges related to reproductive healthcare services. However, this executive order does nothing to prevent rogue law enforcement officials in Massachusetts from collaborating with attempts to criminalize interstate travel for abortion care.
It would only take one anti-choice official to facilitate an interstate prosecution, and thereby undermine Massachusetts’ protections.
This conundrum mirrors recent conflicts over “sanctuary cities,” which demonstrated the power held by individual law enforcement officials to thwart city- and state-level efforts to protect people. Amidst controversies over “sanctuary cities” in 2017, Bristol County Sheriff Thomas Hodgson sought greater entanglement with federal immigration authorities, and even called for the arrest of public officials who committed to immigrant-friendly policies.
Even in Massachusetts, Dobbs will have a particularly chilling effect on undocumented immigrants’ willingness to seek reproductive healthcare. The potential involvement of law enforcement in health-related matters will certainly deter vulnerable populations’ willingness to seek healthcare.
Indeed, even while Roe v. Wade was in effect, undocumented immigrants in Massachusetts often expressed reluctance to seek medical attention. In the wake of the now-rescinded “public-charge” rule, a Trump-era policy that sought to penalize certain immigrants for receiving public assistance, studies confirmed that undocumented immigrants avoided seeking healthcare for fear of perceived immigration ramifications.
Even in the midst of the pandemic, immigrants eligible for Medicaid did not use their benefits or re-enroll in the program, fearing that if “they depend on the government, [they will be] the first to be expelled.”
Likewise, a 2020 study led by the Medical College of Wisconsin in partnership with Lawyers for Civil Rights found that nearly one-third of immigrants assumed they would be penalized for seeking COVID-19 treatment, even though federal guidance indicated otherwise.
Discussions with undocumented immigrants further suggest they will avoid seeking emergency medical assistance during pregnancy. Their reluctance to seek medical assistance is tied “not so much [to] what happens at the doctor’s office as the journey to the doctor’s office and going back.” The fear of being apprehended by ICE and harmed in custody is not baseless, as 2021 report from the National Partnership for Women and Families found dozens of examples of pregnant women who experienced miscarriages and other pregnancy-related complications while in ICE detention due to “inadequate and delayed medical attention, the denial of prenatal care, and being subjected to practices such as shackling around the abdomen.”
Just months ago, Lawyers for Civil Rights represented a Haitian woman who experienced a miscarriage due to medical neglect while under immigration custody.
And it’s not just vulnerable people who will feel Dobbs’ chilling effect—it will impact healthcare providers as well.
Restrictive laws, such as those enacted in Texas and Oklahoma, purport to contain exceptions to criminalization for “medical emergencies,” but the scope of what constitutes a “medical emergency” in the context of pregnancy complications is hotly contested and legally vague. Standard treatments for conditions like ectopic pregnancies and fetal demise typically involve procedures and medications that induce miscarriages.
Medical professionals will now be confronted with a host of crucial questions —where the wrong answer might well mean jail time— including: What constitutes a “life-threatening” emergency? Which treatments are warranted when those emergencies occur? Must medical professionals wait until a pregnant person is on the brink of death to intervene? Is the person who I am treating from Oklahoma or Mississipi, or another state that criminalizes abortion? Should I ask? Or am I better off not knowing?
What is clear, however, is that the vagueness of extreme bans will result in restricted access to medical treatment, due to medical professionals’ reluctance to provide care, given uncertain legal consequences. Ensuing failures to provide emergency medical treatment to pregnant people will unquestionably lead to devastating bodily harm and deaths, even in safe haven states like Massachusetts.
Mitigating Dobbs’ devastating effects and protecting the safety of all people seeking reproductive healthcare will require vigilance and legal innovation coupled with community engagement.
Medical facilities across the country should, with the assistance of legal counsel, formulate plans for handling a full range of contingencies, including pregnancy-related medical emergencies. This will enable them to provide all people —including out-of-state visitors, the uninsured, and undocumented immigrants— with the best medical care available within the confines of the relevant state and federal laws.
Community groups should encourage pregnant people, particularly immigrants, to seek essential medical care. They should join forces to form community-based partnerships and launch multi-language public awareness campaigns to educate communities regarding the safest ways to access care. Laypeople across the Commonwealth can find ways to contribute to these efforts, whether through advocacy or engagement in local politics, including county sheriff elections.
Dobbs not only places fundamental rights protected by the U.S. Constitution at stake, but also jeopardizes the physical and mental health, medical choices, and broader autonomy of pregnant people. It will compound fear surrounding the legal consequences of seeking reproductive healthcare, exacerbate existing health disparities, and undermine Massachusetts’ status as a safe haven for personal autonomy and choice.
The time to act is now.
Miguel A. Maldonado Jr. is a law student at the Thurgood Marshall School of Law.
Ella Klahr Bunnell is a law student at Yale Law School.
Myraida Melendez is the director of the HealthJustice initiative at Lawyers for Civil Rights (LCR), which provides free legal support to low-income patients in community-based health centers.
Iván Espinoza-Madrigal is LCR’s executive director. Twitter: @IvanEspinozaESQ