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Pro-choice supporters take a play from pro-life wins

Win McNamee

Massachusetts is getting close to passing new abortion clinic protections — to replace its old abortion clinic protections recently struck down by the Supreme Court.

The Supreme Court ruled last month that the Bay State's "buffer zone" law, which barred protesters from coming within 35 feet of abortion clinics, violated free-speech protections.

Massachusetts' legislature has responded by pursuing a new law that gives police more authority to restrict protesters' access to clinics. The Massachusetts Senate and House have passed similar versions of the law, and Gov. Deval Patrick is expected to sign it in coming days.

What Massachusetts' pro-choice legislators are doing something that, for decades, the pro-life movement has been really good at: using Supreme Court rulings as a playbook for what subsequent laws can, and can't, be pursued.

The Supreme Court tends to rule more on abortion restrictions than it does on laws protecting abortion, possibly because more of the latter types of laws exist. And when it does, there's usually a quick move by pro-life groups to figure out — even when one of their restrictions falls — what that means for the laws that they can pursue next.

The clearest example of this was arguably after Stenberg v. Carhart, a case from 2000 where the Supreme Court struck down Nebraska's "partial-birth abortion ban," a law that outlawed a particular type of procedure used mostly in late-term abortions.

The Supreme Court struck down that law because it did not include an exception for cases where the woman's health was at risk. Congress took that as guidance: it passed the national Partial Birth Abortion Ban Act in 2003 that did have an exception for women's health — and that the Supreme Court upheld three years later.

Casey v. Planned Parenthood, a case decided in 1992, played a similar role in pro-life policy. That decision found that certain, new Pennsylvania restrictions — including a 24-hour waiting period and mandated parental consent — were constitutional. Other restrictions, such as spousal notification, the Supreme court struck down.

So in the early 1990s, lots of other states began pursuing waiting periods, testing out whether they could push them to 48 or 72 hours. Twenty-one states now have parental consent laws similar to the one that Pennsylvania pioneered more than two decades ago.

In that way, the pro-life movement has long viewed the Supreme Court and its rulings as setting the guidelines for what laws they should purse next. In Massachusetts, there are signs of something similar coming into place: pro-choice legislators seeing what the Supreme Court struck down, and using to figure out what they can put in place as the next-best thing.