With Liberty and Justice for Some:
Massachusetts’ Supreme Court on Life and Death
Summary of the Massachusetts Supreme Court Whitepaper
For a PDF copy of the full Massachusetts Whitepaper, please click here
The Supreme Judicial Court of Massachusetts has been less than solicitous in its willingness to protect life at all stages. The Court’s power of judicial review comes from the Massachusetts Constitution, of which the Court is the ultimate authority.
Life Issues
Abortion
The Massachusetts Constitution recognizes a right to abortion. The Court has extended this right farther than Roe v. Wade in Moe v. Secretary of Administration and Finance, where it found a state constitutional right to government funding for “medically necessary” abortions for indigent women; and in Planned Parenthood League of Massachusetts v. Attorney General, where it held a Massachusetts statute requiring consent of both parents was unconstitutional even with a judicial bypass mechanism. The Court has not considered provisions regarding informed consent or a 24-hour waiting period since Planned Parenthood of Southeastern Pennsylvania v. Casey.
Protection of the Unborn from Criminal Violence
The Court in Remy v. MacDonald ruled that a viable fetus is a “person” within the meaning of a Massachusetts motor vehicle homicide statute and is thus protected against attack by a third party other than the mother, as she has no legal duty towards the fetus. In Mone v. Greyhound Lines, Inc, the Court made a similar ruling for tort recovery under the Massachusetts wrongful death act. While the Court extended recovery to a pre-viable fetus born alive who died within hours in Torigian v. Watertown News Co., it refused recovery in Thibert v. Milka for one that had not been born alive.
Assisted Suicide
In Superintendent of Belchertown State Sch. v. Saikewicz, the Court decided that the standard for determining substituted judgment must take into account the patient’s present and future incompetence. In Brophy v. New England Sinai Hospital, the Court ruled that the mere preponderance of evidence of substituted judgment was sufficient to allow the disconnecting of life support. With respect to refusing treatment, the Court in Norwood Hospital v. Munoz and Matter of Macauley recognized the right of competent adults to refuse life-sustaining blood transfusions for religious reasons but more extensively for personal autonomy.
Healthcare Rights of Conscience
Massachusetts law provides protection to health-care employees conscientiously opposed to abortion, but a more recent law has only a very limited religious freedom exemption for emergency health-care providers who oppose providing emergency contraception. The Court has not addressed the interaction of these statutes.
Cloning and Destructive Embryo Research
In A.Z. v. B.Z., the Court sided with the biological parent who wanted the destruction of a frozen embryo or “pre-embryo”, as the Court called it. The Court has not decided any cases in the area of human cloning or destructive embryo research.
Judicial Restraint
The Court has demonstrated a strong activist tendency as exemplified in Goodridge v. Dept. of Public Health, where it legalized same-sex marriage as a constitutional right by a 4-3 majority. In Planned Parenthood League of Massachusetts, the Court effectively rewrote a Massachusetts law requiring two parents to consent to require consent from only one parent.
The Court
The Massachusetts Supreme Judicial Court is composed of a chief justice and six associate justices. Members are appointed by the Governor with the consent of the Governor’s Council and serve until mandatory retirement at age 70. A judge is removed by a “bill of address,” by the Governor and Governor’s Council, with the concurrence of both houses of the legislature. The current chief justice was a board-member of an abortion clinic prior to her appointment. The Massachusetts Supreme Judicial Court White Paper contains a table of biographical information for each current member of the Court.*
* Since the publication of the White Paper, in September 2007, Governor Deval Patrick appointed Justice Margot Botsford to succeed the late Justice Sosman.
For a PDF copy of the full Massachusetts Whitepaper, please click here