MASSACHUSETTS - TERMINATION OF PREGNANCY (ABORTION)

January 1, 2008

Massachusetts state laws and regulations that affect your medical practice

1. Who may perform an abortion?

No abortion may be performed except by a physician.

M.G.L.A. 112 § 12L

(a) If a pregnancy has existed for less than twenty-four weeks, a physician may perform an abortion if, in the physician's medical judgment, the abortion is necessary under all attendant circumstances.

M.G.L.A. 112 § 12L

(b) If a pregnancy has existed for twenty-four weeks or more, no abortion may be performed unless it is necessary to save the life of the mother, or if a continuation of her pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health.

M.G.L.A. 112 § 12M

( c ) If an abortion is performed after twenty-four weeks as set forth in (b), no abortion procedure which is designed to destroy the life of the unborn child or injure the unborn child in its mother's womb may be used unless, in the physician's best medical judgment, all other available procedures would create a greater risk of death or serious bodily harm to the mother either at the time of the abortion, or subsequently as the result of a future pregnancy, than the one being used.

M.G.L.A. 112 § 12O

(d) If an abortion is performed after twenty-four weeks as set forth in (b), the physician performing the abortion shall take all reasonable steps, both during and subsequent to the abortion, in keeping with good medical practice, consistent with the procedure being used, to preserve the life and health of the aborted child. Such steps shall include the presence of life-supporting equipment, as defined by the department of public health, in the room where the abortion is to be performed.

M.G.L.A. 112 § 12P

(e) If the physician performing the abortion after twenty-four weeks is not the physician who made the medical judgment required before performing the abortion, he shall obtain from the physician making such judgment a written statement setting forth the exception that in his best medical judgment permits the abortion after twenty-four weeks and the specified reasons why the abortion qualifies under that exception.

M.G.L.A. 112 § 12R

3. Is the patient's consent required prior to performing an abortion?

Yes. Except in an emergency requiring immediate action, no abortion may be performed unless the written informed consent of the proper person or persons has been delivered to the physician performing the abortion.

The commissioner of public health shall prescribe a form for physicians to use in obtaining such consent. This form shall be written in a manner designed to permit a person unfamiliar with medical terminology to understand its purpose and content, and shall include the following information: a description of the stage of development of the unborn child; the type of procedure which the physician intends to use to perform the abortion; and the possible complications associated with the use of the procedure and with the performance of the abortion itself; the availability of alternatives to abortion; and a statement that, under the law of the commonwealth, a person's refusal to undergo an abortion does not constitute grounds for the denial of public assistance. A pregnant woman seeking an abortion shall sign the consent form described above at least twenty-four hours in advance of the time for which the abortion is scheduled, except in an emergency requiring immediate action. She shall then return it to the physician performing the abortion who shall maintain it in his files and destroy it seven years after the date upon which the abortion is performed.

The said consent form and any other forms, transcript of evidence, or written findings and conclusions of a court, shall be confidential and may not be released to any person except by the pregnant woman's written informed consent or by a proper judicial order, other than to the pregnant woman herself, the operating physician, any person whose consent is required, or under the law.

M.G.L.A. 112 § 12Q; M.G.L.A. 112 § 12S

4. What are the restrictions on performing an abortion upon a pregnant minor?

If a pregnant woman is less than eighteen years of age and has not married, a physician shall not perform an abortion upon her unless he first obtains the consent of the pregnant woman and that of her parents, except as hereinafter provided. In deciding whether to grant such consent, a pregnant woman's parents shall consider only their child's best interests. If one of the pregnant woman's parents has died or is unavailable to the physician within a reasonable time and in a reasonable manner, consent of the remaining parent shall be sufficient. If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians shall be sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. If a pregnant woman less than eighteen years of age has not married and if one or both of her parents or guardians refuse to consent to the performance of an abortion, or if she elects not to seek the consent of one or both of her parents or guardians, a judge of the superior court department of the trial court shall, upon petition, or motion, and after an appropriate hearing, authorize a physician to perform the abortion if said judge determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion or, if said judge determines that she is not mature, that the performance of an abortion upon her would be in her best interests. A pregnant woman less than eighteen years of age may participate in proceedings in the superior court department of the trial court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court appointed counsel, and shall, upon her request, provide her with such counsel. Proceedings in the superior court department of the trial court under this section shall be confidential and shall be given such precedence over other pending matters that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant woman. A judge of the superior court department of the trial court who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting his decision and shall order a record of the evidence to be maintained including his own findings and conclusions.

M.G.L.A. 112 § 12S

5. At what locations may abortions be performed?

(a) First-Trimester Abortion: A first-trimester abortion must be performed by a licensed and qualified physician in a clinic licensed by the Department of Public Health to perform surgical services, or in a hospital licensed by the Department of Public Health to provide medical/surgical services.

(b) Second-Trimester Abortion: A second-trimester abortion must be performed by a licensed and qualified physician in a hospital licensed by the Department of Public Health to provide medical/surgical services; provided, however, that up to and including the 18th week of pregnancy, a second-trimester abortion may be performed in a clinic that meets Massachusetts regulatory requirements, where the attending physician certifies in the medical record that, in his or her professional judgment, a non-hospital setting is medically appropriate in the specific case.

( c ) Third-Trimester Abortion: A third-trimester abortion must be performed only to save the life of the mother or to eliminate substantial risk of grave impairment to her physical or mental health. A third-trimester abortion must be performed by a licensed and qualified physician only in a hospital licensed by the Department of Public Health to provide facilities for obstetrical services.

130 MA ADC 484.005

6. What tests are required prior to performing an abortion?

Prior to the performance of an abortion, the physician shall make a positive determination of pregnancy, test for blood type and Rh type, test for Rho(D) sensitization on each patient found to be Rho(D) negative by use of an antiglobulin (Coombs) test performed by a blood bank operated by a licensed hospital, or by a laboratory, and offer Rho(D) immune globulin (Human) to each Rho(D) negative patient with a negative sensitization test at the time of any abortion. The physician performing the abortion shall retain this written statement as an attachment to the file copy of his report.

M.G.L.A. 112 § 12R

7. What reports must be filed by a physician who performs an abortion?

Within thirty days after the performance of an abortion, the physician performing such abortion shall file with the commissioner of public health on a form prescribed by him the following information to the best of his knowledge: the date and place of the abortion; if he was the physician making the medical judgment required for abortions after twenty-four weeks, the exception cited that in his best medical judgment permitted the abortion and the specific reasons why the abortion qualified under that exception; if he is not the physician who made such medical judgment, the name and address of the physician from whom he received the required written statement setting forth the exception that permitted the abortion, and a verbatim recitation of the specific reasons why the abortion qualified under an exception as set forth in the written statement he received from such physician; the age of the mother; the method used to perform the abortion; whether the mother survived the abortion; the details of any morbidity observed in the mother; the gestational age of the child; the weight and crown-rump length of the child if determinable; whether the unborn child was alive when removed or expelled from the mother and if so, the steps taken to preserve its life; and the length of time the child lived after removal or expulsion from the mother.

The physician performing the abortion shall retain in his files for seven years after the abortion a copy of the report to which he should attach or otherwise add the name of the mother. The original of the report filed with the commissioner shall not contain the name of the mother and shall be maintained by the commissioner as a public record. The commissioner shall prepare from these reports such statistical tables with respect to maternal health, abortion procedures, the unborn child and viability as he deems useful and shall make an annual report thereof to the general court.

M.G.L.A. 112 § 12R

8. May a physician refuse to perform abortion or sterilization procedures?

Yes. A physician or any other person who is a member of or associated with the medical staff of a hospital or other health facility or any employee of a hospital or other health facility in which an abortion or any sterilization procedure is scheduled and who shall state in writing an objection to such abortion or sterilization procedure on moral or religious grounds, shall not be required to participate in the medical procedures which result in such abortion or sterilization, and the refusal of any such person to participate therein shall not form the basis for any claim of damages on account of such refusal or for any disciplinary or recriminatory action against such person.

The refusal of any person who has made application to a medical, premedical, nursing, social work, or psychology program in the commonwealth to agree to counsel, suggest, recommend, assist or in any way participate in the performance of an abortion or sterilization contrary to his religious beliefs or moral convictions shall not form the basis for any discriminatory action against such person.

Conscientious objection to abortion shall not be grounds for dismissal, suspension, demotion, failure to promote, discrimination in hiring, withholding of pay or refusal to grant financial assistance under any state aided project, or used in any way to the detriment of the individual in any hospital, clinic, medical, premedical, nursing, social work, or psychology school or state aided program or institution which is supported in whole or in part by the commonwealth.

M.G.L.A. 112 § 121

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.