The Legal Status of Abortion in the States if Roe v. Wade is Overruled

The death of Chief Justice Rehnquist, the retirement of Associate Justice O'Connor, and the possibility that one or more other justices may leave the Supreme Court during the remainder of President Bush's second term have fueled speculation that a differently-constituted Court may overrule Roe v. Wade,1 as modified by Planned Parenthood v. Casey,2 and return the issue of abortion to the States. This speculation is decidedly premature. Only two justices now on the Court-Associate Justices Scalia and Thomas-have voted to overrule Roe. Although Justice Kennedy dissented in the Supreme Court's decision striking down the Nebraska partial-birth abortion ban act seven years ago,3 he did not join the dissenting opinions of Chief Justice Rehnquist, Justice Scalia and Justice Thomas calling for Roe and Casey to be overruled.4 Chief Justice John Roberts and Associate Justice Samuel Alito may be expected to defer to reasonable efforts by the States to regulate the practice of abortion. Nevertheless, it is questionable whether the Chief Justice would be willing to overrule Roe and Casey without further erosion of both precedents, in light of his respect for precedent and his understanding of the evolutionary nature of constitutional adjudication. Much the same may be said of Justice Alito.5 Given the intense scrutiny that would be given to any further vacancies on the Court in the next eighteen months, the possibility that President Bush would be able to place anti-Roe justices on the Supreme Court (even assuming that he would want to) is decidedly remote.

However remote an overruling decision may appear to be at this point, the mere possibility of such a decision has led to concern regarding the legal status of abortion in the States if Roe and Casey are overruled. Regrettably, much that has been written about the effect of an overruling decision is inaccurate or misleading. The purpose of this article is to evaluate, on a State-by-State basis, the impact of a decision overruling Roe v. Wade and Planned Parenthood v. Casey on the legal status of abortion. A review of the relevant statutes and cases leaves no doubt that, in the absence of new legislation, for which there would have to be a contemporary political consensus, abortion would be legal in the overwhelming majority of States at least through viability and very probably after viability, as well. Barely a handful of States would have laws on the books prohibiting abortions in most circumstances throughout pregnancy.

Alabama

The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life or health and done for that purpose."6 The statute, which has not been repealed,7 has not been declared unconstitutional nor has its enforcement been enjoined. Because the scope of the health exception is not defined, the statute may not effectively prohibit many abortions, even if Roe v. Wade were overruled.8

Alaska

The pre-Roe statute allowed abortion on demand prior to viability,9 and impliedly prohibited abortion after viability.10 Section 18.16.010(d) was repealed in 1997." The provision of the pre-Roe statute that prohibited post-viability abortions would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy.12 Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Alaska would be barred by the Alaska Supreme Court's decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).13

Arizona

The principal pre-Roe statutes prohibited abortion on a pregnant woman unless the procedure was "necessary to save her life,"14 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).15 Pursuant to Roe, the statutes were declared unconstitutional by the Arizona Court of Appeals.16 Their enforcement was not enjoined. Although the pre-Roe statutes have not been expressly repealed,17 they may not be enforceable, even if Roe v. Wade were overruled, because of a state supreme court decision striking down restrictions on public funding of therapeutic abortions on state constitutional grounds (privileges and immunities).18 It is also possible that the statutes have been repealed by implication with the enactment of substantial post-Roe legislation regulating abortion.19

Arkansas

Analysis of the current status of the Arkansas pre-Roe statutes is complex. The pre-Roe statutes included an 1875 law that prohibited all abortions except to save the life of the mother,20 and a more recently minted law based upon § 230.3 of the Model Penal Code,21 which prohibited abortions except when there was "substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the . . . woman," when there was "substantial risk that the child would be born with grave physical or mental defect," or when the pregnancy resulted from a promptly reported act of rape or incest.22 In 1980, a three-judge federal district court held that the substantive provisions of the 1875 law had been repealed by implication with the enactment of the 1969 law, and then declared unconstitutional and enjoined the provisions of the 1969 law.23

All of the abortion provisions on the books on January 22, 1973 were superseded by or omitted from the Arkansas Code of 1987, except § 41-2553, the first section of 1969 law, which prohibits all abortions,24 and section 41-2560, which guarantees rights of conscience.25 The exceptions in the 1969 law based on the Model Penal Code were deleted from the books with the adoption of the Arkansas Code of 1987, leaving only the section prohibiting abortion.26 Thus, current Arkansas law is based upon a post-Roe codification of law that substantially revised the pre-Roe laws.

The prohibition of abortion embodied in § 5-61-102 may be subject to a challenge that it has been repealed by implication with significant post- 1987 legislation regulating abortion. Assuming, however, that § 5-61-102 is not successfully challenged on that basis, abortion would be illegal in Arkansas if Roe v. Wade were overruled, once the injunction issued in Smith v. Bentley is dissolved.27

California

The pre-Roe abortion statutes were based upon § 230.3 of the Model Penal Code.28 The California Penal Code prohibited abortions not performed in compliance with the "Therapeutic Abortion Act" of 1967,29 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).30 The Therapeutic Abortion Act authorized the performance of an abortion on a pregnant woman if the procedure was performed by a licensed physician and surgeon in an accredited hospital, and was unanimously approved in advance by a medical staff committee.31 An abortion could not be approved unless the committee found that there was a "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother," or that "[t]he pregnancy resulted from rape or incest."32 An abortion could not be performed on grounds of rape or incest unless there was probable cause to believe that the pregnancy resulted from rape or incest.33 No abortion could be approved after the twentieth week of pregnancy for any reason.34

In a pre-Roe decision, the California Supreme Court declared substantial provisions of the Therapeutic Abortion Act unconstitutional on state and federal due process grounds (vagueness).35 Sections 274 and 275 of the Penal Code were repealed in 2000;36 the Therapeutic Abortion Act was repealed in 2002. 37 None of these statutes would be revived by a decision overruling Roe v. Wade.i8 Abortions could be performed for any reason before viability, and for virtually any reason after viability.39

Finally, regardless of Roe, any attempt to enact meaningful restrictions on abortion in California would be precluded by the California Supreme Court's 1981 decision in Committee to Defend Reproductive Rights v. Myers.40 In Myers, the state supreme court struck down restrictions on public funding of abortion on state constitutional grounds (privacy). In the course of its decision, the court stated that under the privacy guarantee of the state constitution, "all women in this state-rich and poor alike-possess a fundamental constitutional right to choose whether or not to bear a child."41

Colorado

The pre-Roe abortion statute was based upon § 230.3 of the Model Penal Code.42 Under the statute, an abortion could be performed at any stage of pregnancy (defined as "the implantation of an embryo in the uterus") when continuation of the pregnancy was likely to result in the death of the woman, "serious permanent impairment" of her physical or mental health, or the birth of a child with "grave and permanent physical deformity or mental retardation."43 An abortion could be performed within the first sixteen weeks of pregnancy (gestational age) when the pregnancy resulted from rape (statutory or forcible) or incest, and the local district attorney confirmed in writing that there was probable cause to believe that the alleged offense had occurred.44 Pursuant to Roe v. Wade, the limitations on circumstances under which abortions could be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the Colorado Supreme Court in People v. Norton.'*5 Enforcement of the statute was not enjoined.

The pre-Roe statute has not been repealed,46 and would be enforceable if Roe v. Wade were overruled. The broad exceptions in the statute, however, in particular the exception for mental health,47 would allow almost all abortions to be performed.

Connecticut

The principal pre-Roe statutes, based upon an 1860 law, prohibited performance of an abortion on a woman unless it was "necessary to preserve her life or that of her unborn child,"48 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).49 In a pre-Roe decision, those statutes were declared unconstitutional by a three-judge federal district court.50 Enforcement of the statutes was not enjoined. After the district court entered its judgment and before the case was remanded by the Supreme Court, Connecticut enacted a new abortion statute with provisions similar to those previously invalidated by the federal district court.51 Section 1 of the Act stated in part that it was "[t]he public policy of the state and the intent of the legislature to protect and preserve human life from the moment of conception . . . ."52 This statute was also declared unconstitutional (and permanently enjoined) by the same three-judge federal district court.53 On remand from the Supreme Court, the federal district court held that the older statutes had not been repealed with the enactment of the newer statute and declared both sets of statutes unconstitutional under Roe and permanently enjoined their enforcement.54 The pre-Roe statutes were repealed in 1990, 55 and would not be revived by a decision overruling Roe v. Wade.56 Abortions could be performed for any reason before viability, and for virtually any reason after viability57

Delaware

The principal pre-Roe statutes were based on § 230.3 of the Model Penal Code.58 The statutes prohibited performance of an abortion on a pregnant woman unless the procedure was a "therapeutic abortion,"59 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).60 An abortion could be performed at any time when continuation of the pregnancy was "likely to result in the death of the mother."61 An abortion could be performed within the first twenty weeks of gestational age when (1) there was "substantial risk of the birth of [a] child with grave and permanent physical deformity or mental retardation," (2) the pregnancy resulted from incest or rape, or (3) continuation of the pregnancy would involve "substantial risk of permanent injury to the physical or mental health of the mother."62 The pre-Roe statutes have not been declared unconstitutional, nor has their enforcement been enjoined.63 The statutes have not been repealed,64 and would enforceable if Roe v. Wade were overruled. The exception in the statute for mental health,65 however, would allow almost all abortions to be performed throughout the twentieth week of gestation. After the twentieth week, however, abortions could be performed only if continuation of the pregnancy was "likely to result in the death of the mother."66

District of Columbia

The pre-Roe statute prohibited performance of an abortion unless the procedure was "necessary for the preservation of the mother's life or health . . . ."67 The constitutionality of the statute was upheld in United States v. Vuitch,68 where the Supreme Court broadly defined "health" as "the state of being sound in body or mind," which "includes psychological as well as physical well-being."69 The pre-Roe statute was repealed in 2003. 70 The overruling of Roe v. Wade would not affect the legality of abortion in the District of Columbia. Abortions could be performed for any reason at any time of pregnancy.

Florida

The pre-Roe statute was based on § 230.3 of the Model Penal Code.71 The statute provided that an abortion could be performed at any stage of pregnancy when (1) "continuation of the pregnancy would substantially impair the life or health of the female," (2) there was "substantial risk that the continuation of the pregnancy would result in the birth a child with a serious physical or mental defect," or (3) there was "reasonable cause to believe that the pregnancy resulted from rape or incest."72 Pursuant to Roe, major portions of the 1972 law were declared unconstitutional by a three-judge federal district court in Coe v. Gerstein,73 and by the Florida Supreme Court in Wright v. State.74 The statute was later repealed.75 The overruling of Roe v. Wade would not revive the pre-Roe statute. Abortions could be performed for any reason before the third trimester, and for virtually any reason thereafter.76 Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Florida would be barred by the Florida Supreme Court's decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).77

Georgia

The pre-Roe statute was based upon § 230.3 of the Model Penal Code.78 Under the statute, an abortion could not be performed unless (1) "continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health," (2) the "fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect," or (3) the pregnancy resulted from forcible or statutory rape.79 The statute did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed. Major provisions of the statute were declared unconstitutional by a three -judge federal district court in Doe v. Bolton,80 whose decision was affirmed, as modified, by the Supreme Court.81 The statute was repealed in 1973,82 and would not be revived by the overruling of Roe v. Wade and Doe v. Bolton. Abortions could be performed for any reason before the third trimester, and for virtually any reason thereafter.83

Hawaii

The pre-Roe statute explicitly allowed abortion on demand prior to viability and implicitly allowed abortion after viability for any reason.84 The statute, which has not been repealed,85 has not been declared unconstitutional nor has its enforcement been enjoined. Recently, the Hawaii Legislature amended the pre-Roe statute to eliminate the hospitalization and residency requirements,86 which were unenforceable under Doe v. Bolton. The legality of abortion would not be affected by a decision overruling Roe v. Wade. Abortions could be performed for any reason before or after viability87

Idaho

The principal pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"88 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).89 These statutes were repealed in 1973,90 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before the third trimester. Under a separate statute, however, abortions could not be performed during the third trimester except to preserve the life of the pregnant woman or where the pregnancy would result in the birth or delivery of a fetus unable to survive.91

Illinois

The principal pre-Roe statute prohibited performance of an abortion unless the procedure was "necessary for the preservation of the woman's life."92 Pursuant to Roe, this statute was declared unconstitutional by the Illinois Supreme Court in People v. Frey,93 and was later repealed.94 The statute would not be revived by a decision overruling Roe v. Wade.95 Abortions could be performed for any reason before viability, and for virtually any reason after viability.96 Indiana

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"97 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).98 Both statutes were repealed in 1977,99 and neither would be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability. Under a separate statute, however, abortions after viability could be performed only to prevent substantial permanent impairment to the life or physical health of the pregnant woman.100

Iowa

The principal pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to save her life."101 Pursuant to Roe, this statute was declared unconstitutional by a three-judge federal district court in Doe v. Turner,102 and was repealed in 1976. 103 The pre-Roe statute would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason through the second trimester, and for virtually any reason thereafter.104

Kansas

The principal pre-Roe statute was based on § 230.3 of the Model Penal Code.105 An abortion could be performed at any stage of pregnancy when (1) there was "substantial risk that a continuance of the pregnancy would impair the physical or mental health of the mother," (2) there was "substantial risk . . . that the child would be born with physical or mental defect," or (3) "the pregnancy resulted from rape, incest or other felonious intercourse."106 This statute was repealed in 1992, 107 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability. Under a separate statute, however, abortions could be performed after viability only to preserve the life of the pregnant woman or to prevent substantial and irreversible impairment of a major bodily function.108

Kentucky

The pre-Roe statutes prohibited performance of an abortion upon a pregnant woman unless it was "necessary to preserve her life,"109 and punished the offense as a homicide if the woman died as a result thereof.110 Pursuant to Roe, these statutes were declared unconstitutional by the Kentucky Court of Appeals (the name of Kentucky's highest court before 1976) in Sasaki v. Commonwealth,111 and were repealed in 1974. "2 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade.lu Abortions could be performed for any reason before viability, and for virtually any reason after viability114

Louisiana

The principal pre-Roe statute prohibited all abortions.115 Although § 14:87 did not on its face permit any exceptions, given the requirement of a specific criminal intent,116 an abortion performed to save the life of the mother probably was lawful. This construction would have been consistent with another statute that barred disciplinary action against a physician who performed an abortion for that purpose.117 Pursuant to Roe, § 14:87 and § 37:1285(6) were declared unconstitutional in a pair of three-judge federal district court decisions.118 Following the Supreme Court's decision in Webster v. Reproductive Health Services,119 the Louisiana Attorney General and the District Attorney for New Orleans Parish sought to reopen the earlier decisions invalidating § 14:87 and enjoining its enforcement. A threejudge federal district court convened to hear the case held that § 14:87 had been repealed by implication with the enactment of comprehensive post-Roe legislation regulating abortion.120 The legislature thereafter enacted a new § 14:87 prohibiting abortion except to preserve the life or health of the unborn child, to save the life of the mother or to terminate a pregnancy that resulted from a reported act of rape or incest.121 This statute was also declared unconstitutional.122 Recently, the Louisiana Legislature repealed and reenacted § 14:87, deleting the exceptions for rape and incest, retaining the life-of-the-mother exception and adding a very narrow physical health exception (preventing permanent impairment of a life-sustaining organ of a pregnant woman).123 The amendments take effect when Roe v. Wade is overruled or the United States Constitution is amended to restore the authority of the States to prohibit abortion.124 Section 14:87 would take effect and be enforceable if Roe v. Wade were overruled or if the federal constitution were amended to restore the States' authority to prohibit abortion.125

Maine

The pre-Roe statute prohibited performance of an abortion unless the procedure was "necessary for the preservation of the mother's life."126 The statute was repealed in 1979, 127 and would not be revived by a decision overruling Roe v. Wade. ns Abortions could be performed for any reason before viability, and for virtually any reason after viability.129

Maryland

The principal pre-Roe statute was based on § 230.3 of the Model Penal Code.130 An abortion could be performed at any stage of pregnancy when "continuation of the pregnancy [was] likely to result in the death of the mother."131 An abortion could be performed within the first twenty-six weeks of gestation when (1) there was "substantial risk that continuation of the pregnancy would gravely impair the physical or mental health of the mother," (2) there was "substantial risk of the birth of [a] child with grave and permanent physical deformity or mental retardation," or (3) the pregnancy resulted from a forcible rape.132 The State's Attorney had to confirm that there was probable cause to believe that the rape had in fact occurred.133

Pursuant to Roe and Doe, the limitations on the circumstances under which abortions may be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the Maryland Court of Special Appeals in State v. Ingel,134 and Coleman v. Coleman,135 and by the United States Court of Appeals for the Fourth Circuit in Vuitch v. Hardy.136 With the exception of the conscience provisions, all of the provisions of the pre-Roe statutes, recodified in 1987,137 were repealed in 1991.138 These statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.139

Massachusetts

The principal pre-Roe statute prohibited performance of "unlawful" abortions.140 Although the statute itself did not define what constituted an "unlawful" abortion, in a series of cases the Massachusetts Supreme Judicial Court interpreted the statute to allow abortions for reasons of the pregnant woman's physical or mental health.141 Pursuant to Roe, § 19 of ch. 272 was declared unconstitutional in an unreported decision of a three-judge federal district court.142 The pre-Roe statute has not been repealed.143 However, in light of the judicially engrafted exceptions for physical and mental health, it is doubtful that the statute would effectively prohibit any abortions even if Roe v. Wade were overruled.144 Moreover, regardless of Roe, any attempt to prohibit abortion (at least before viability) in Massachusetts would be barred by the Massachusetts Supreme Judicial Court's decisions recognizing a fundamental right to abortion on state constitutional grounds (due process).145

Michigan

The principal pre-Roe statute prohibited performance of an abortion on a pregnant woman "unless the same shall have been necessary to preserve the life of such woman."146 Another statute provided: "Any person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, be guilty of manslaughter."147 And under a third statute, the "wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter."148

In People v. Bricker,149 and Larkin v. Calahan,150 the Michigan Supreme Court considered the constitutionality of these statutes in light of the Supreme Court's decisions in Roe v. Wade and Doe v. Bolton. In Bricker, the court, while affirming the conviction of a layman for conspiracy to commit an abortion, held that under the Supremacy Clause, the State's public policy to proscribe abortion had to be subordinated to the federal constitutional requirements elucidated in Roe and Doe.151 Accordingly, § 750.14 was construed not to apply to an abortion performed by a physician in the exercise of his or her medical judgment.152 "[A] physician," however, "may not cause a miscarriage after viability except where necessary, in his or her medical judgment, to preserve the life or health of the mother."153 "[E]xcept as those cases defined and exempted under Roe v. Wade and Doe v. Bolton, . . . criminal responsibility attaches."154

In Larkin, the supreme court held that § 750.322 "is limited in its scope to abortions caused by felonious assault upon the mother, which result in the death of an unborn quick child en ventre sa mere."155 Finally, in conformity with Roe v. Wade, the court held that the word "child," as used in §§ 750.322 and 750.323, means "a viable child in the womb of its mother."156 The pre-Roe statutes have not been repealed,157 and would be enforceable if Roe v. Wade were overruled.

Minnesota

The principal pre-Roe statutes prohibited performance of an abortion upon a pregnant woman unless the procedure was "necessary to preserve her life, or that of the child with which she [was] pregnant,"158 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).159 Pursuant to Roe, § 617.18 was declared unconstitutional in a pair of decisions by the Minnesota Supreme Court.160 Both § 617.18 and § 617.19 were repealed in 1974, 161 and neither would be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.162 Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Minnesota, even if Roe were overruled, would be barred by a Minnesota Supreme Court decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).163

Mississippi

The principal pre-Roe statute prohibited the performance of an abortion except when (1) the procedure was "necessary for the preservation of the mother's life," or (2) when the pregnancy was caused by rape.164 Pursuant to Roe, the Mississippi Supreme Court held that § 97-3-3 is unconstitutional with respect to physicians, but constitutional with respect to non-physicians and upheld the conviction of a laywoman for performing an abortion.165 Although § 97-3-3 has not been repealed,166 it would not be enforceable, even if Roe were overruled, because of a Mississippi Supreme Court decision recognizing a right to an abortion on state constitutional grounds (an implied right of privacy).167 The court reviewed the "undue burden" standard of review the Supreme Court developed in Planned Parenthood v. Casey168 for evaluating the constitutionality of abortion regulations under the United States Constitution and chose to adopt that standard for measuring the validity of abortion regulations under the Mississippi Constitution.169 Under that standard, abortions could be performed for any reason before viability, and for virtually any reason after viability.

Missouri

The principal pre-Roe statute prohibited performance of an abortion on a woman unless the procedure was "necessary to preserve her life or that of an unborn child."170 Pursuant to Roe, this statute was declared unconstitutional and permanently enjoined in an unreported decision of a three-judge federal court.171 The statute was later repealed,172 and would not be revived by a decision overruling Roe v. Wade.173 Abortions could be performed for any reason before viability, and for virtually any reason after viability174

Montana

The principal pre-Roe statutes prohibited performance of an abortion unless the procedure was "necessary to preserve the life of the mother,"175 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).176 Pursuant to Roe v. Wade, these statutes were declared unconstitutional by a three-judge federal district court in Doe v. Woodahl,177 and were later repealed. 178 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability. Under a separate statute, however, abortions could be performed after viability only to save the life of the pregnant woman or to prevent substantial and irreversible impairment of a major bodily function.179

Finally, regardless of Roe, any attempt to prohibit abortion (at least before viability) in Montana would be precluded by the Montana Supreme Court's decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).180

Nebraska

The pre-Roe statutes prohibited performance of an abortion unless the procedure was "necessary to preserve the life of the mother, or shall have been advised by two physicians to be necessary for such purpose."181 Pursuant to Roe, these statutes were declared unconstitutional in an unreported judgment of a three-judge federal district court,182 and were later repealed.183 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.184

Nevada

The principal pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life or that of the child,"185 and made a woman's participation in her own abortion after quickening a criminal offense (subject to the same exception).186 An attorney general opinion ruled that the statutes were unconstitutional under Roe to the extent that they prohibited most first and second trimester abortions.187 The substantive provisions of these statutes were repealed in 1973 and replaced with provisions conforming to the requirements of Roe v. Wade and Doe v. Bolton.188 The substance of the pre-Roe provisions would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before the twenty-fourth week of pregnancy, and for virtually any reason thereafter.189

New Hampshire

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman before quickening for any reason,190 and after quickening unless, "by reason of some malformation or of difficult or protracted labor, it shall have been necessary to preserve the life of the woman or shall have been advised by two physicians to be necessary for that purpose."191 These statutes were repealed in 1997, 192 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy.

New Jersey

The pre-Roe statute prohibited performance of an abortion on a pregnant woman "maliciously or without lawful justification."193 This statute was declared unconstitutional by a three-judge federal court in 1972,194 and was repealed in 1978. 195 The pre-Roe statute would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy. Regardless of Roe, any attempt to prohibit abortion (at least before viability) in New Jersey would be barred by the New Jersey Supreme Court's decisions recognizing a fundamental right to abortion on state constitutional grounds (privacy).196

New Mexico

The pre-Roe abortion statute was based on § 230.3 of the Model Penal Code.197 An abortion could be performed at any stage of pregnancy (defined as the "implantation of an embryo in the uterus") when (1) continuation of the pregnancy was likely to result in the death of the woman or "grave impairment" of her physical or mental health, (2) the child probably will have a "grave physical or mental defect," or (3) the pregnancy resulted from reported rape or incest.198 Pursuant to Roe and Doe, the limitations on the circumstances under which abortions could be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the New Mexico Court of Appeals in State v. Strance.199 Enforcement of the statute was not enjoined. The pre-Roe statute has not been repealed,200 but would not be enforceable, even if Roe v. Wade were overruled, because of a state supreme court decision striking down abortion funding restrictions on the basis of the state equal rights amendment.201

New York

The pre-Roe statutes allowed abortion on demand through the twenty-fourth week of pregnancy.202 After the twenty-fourth week, an abortion could be performed on a pregnant woman only if there was "a reasonable belief that such is necessary to preserve her life."203 In a pre-Roe decision, the New York Court of Appeals (New York's highest court) rejected a challenge to the law brought by a guardian ad litem for unborn children.204 The legality of abortion would not be affected by the overruling of Roe v. Wade. The pre-Roe statutes, which have not been repealed,205 allow abortion on demand through the twenty-fourth week of pregnancy. After the twenty-fourth week, however, abortions could be performed only to preserve the woman's life.

Regardless of Roe, any attempt to prohibit abortion (at least before viability) in New York probably would be barred by language in the New York Court of Appeals' decision in Hope v. Perales,206 a challenge to the New York Prenatal Care Assistance Program. In Hope, the court of appeals noted in passing that "it is undisputed by defendants that the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our State Constitution, is at least as extensive as the Federal constitutional right [recognized in Roe v. Wade]."207

North Carolina

The pre-Roe statutes were based on § 230.3 of the Model Penal Code.208 Sections 14-44 and 14-45 prohibited all abortions.209 Section 14-45. 1 excepted from the scope of §§ 14-44 and 14-45 abortions performed by licensed physicians in licensed hospitals when (1) there was "substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of [the pregnant woman] ," (2) there was "substantial risk the child would be born with grave physical or mental defect," or (3) the pregnancy resulted from incest or promptly reported rape.210 The statutes did not place any express limitation on the stage of pregnancy at which an authorized abortion could be performed.211

In May 1973, § 14.45. 1 was substantially amended to conform to the Supreme Court's decisions in Roe v. Wade and Doe v. Bolton.212 Under current law, abortions may be performed after the twentieth week of pregnancy by licensed physicians in licensed hospitals only "if there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman."213

The substance of the pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before the twentieth week of pregnancy and, depending upon how the post-twenty week statute is interpreted, for virtually any reason thereafter.214

North Dakota

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"215 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).216 Pursuant to Roe, these statutes were declared unconstitutional by a federal district court in Leigh v. Olson,217 and were later repealed.218 The statutes would not be revived by a decision overruling Roe v. Wade. Recently, the North Dakota legislature passed a "trigger" law that would make abortion illegal except "to prevent the death of the pregnant female," and in cases where pregnancy resulted from "gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest," all of which are treated as affirmative defenses.219 The law takes effect "on the date the legislative council approves by motion the recommendation of the attorney general to the legislative council that it is reasonably probable that Section 1 . . . would be upheld as constitutional.220

Ohio

The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless it was "necessary to preserve her life, or [it was] advised by two physicians to be necessary for that purpose."221 Pursuant to Roe, this statute was declared unconstitutional by the Ohio Supreme Court in State v. Kruze.222 While Kruze's petition for certiorari was pending, the statute was repealed,223 and its substantive provisions re-enacted.224 That statute, in turn, was repealed in 1974.225 The pre-Roe statute would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability. Under a separate statute, however, abortions could be performed after viability only to prevent the death of the pregnant woman or to prevent substantial and irreversible impairment of a major bodily function.226

Oklahoma

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"227 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).228 Pursuant to Roe, these statutes were declared unconstitutional by the Oklahoma Court of Criminal Appeals in Jobe v. State,229 and by a three-judge federal district court in Henrie v. Derryberry.230 Enforcement of the statutes was not enjoined.

The pre-Roe statutes have not been expressly repealed,231 and would be enforceable if Roe v. Wade were overruled, assuming that they have not been repealed by implication with the enactment of comprehensive post-Roe legislation regulating abortion.232

Oregon

The pre-Roe statutes were based on § 230.3 of the Model Penal Code.233 The statutes allowed an abortion to be performed before the one hundred fiftieth day of pregnancy when (1) there was "substantial risk that continuance of the pregnancy [would] greatly impair the physical or mental health of the mother," (2) "the child would be born with serious physical or mental defect," or (3) the pregnancy resulted from felonious intercourse.234 After the one hundred fiftieth day, abortion was permitted only if "the life of the pregnant woman [was] in imminent danger."235

Pursuant to Roe, most of these statutes were declared unconstitutional in an unreported decision of a three-judge federal court,236 and were later repealed.237 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy238

Pennsylvania

The pre-Roe statutes prohibited "unlawful" abortions.239 The statutes themselves did not define what an "unlawful" abortion was, nor was the word given an authoritative interpretation by the Pennsylvania Supreme Court. Pursuant to Roe, the statutes were declared unconstitutional by the Pennsylvania Supreme Court in a pair of decisions,240 and were later repealed.241 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before the twenty-fourth week of pregnancy. Under a separate statute, however, abortions could be performed after the twenty-fourth week of pregnancy only to prevent the death of the pregnant woman or to prevent substantial and irreversible impairment of a major bodily function.242

Rhode Island

The principal pre-Roe statute prohibited the performance of an abortion on a woman unless the procedure was "necessary to preserve her life."243 Pursuant to Roe, this statute was declared unconstitutional in a pair of unreported decisions by a three-judge federal district court,244 and was repealed in 1973.245 In response, Rhode Island reenacted the statute, adding a "conclusive presumption" that "human life commences at the instant of conception" and that said human life "is a person within the language and meaning of the fourteenth amendment of the Constitution of the United States."246 This statute was declared unconstitutional by a federal district court in Doe v. Israel,2*7 but its enforcement was not enjoined.

In 1975, Rhode Island enacted a statute which prohibited performance of an abortion on a "woman pregnant with a quick child" unless "the same be necessary to preserve the life of such mother."248 This statute was declared unconstitutional by a federal district court in Rodos v. Michaelson,249 but that judgment was later reversed by the court of appeals, which found that the plaintiffs lacked standing to challenge the statute.250 Neither the 1973 statute nor the 1975 statute has been repealed.251 Assuming that the 1973 statute has not been repealed by implication with the enactment of the 1975 statute and other legislation regulating the practice of abortion, it would be enforceable if Roe v. Wade were overruled.

South Carolina

The pre-Roe abortion statutes were based on § 230.3 of the Model Penal Code.252 Sections 16-82 and 16-83 prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life or the life of [her] child,"253 and § 16-84 made a woman's participation in her own abortion a criminal offense.254 Section 16-87 excepted from these sections abortions performed on pregnant women by licensed physicians in licensed hospitals when (1) there was "substantial risk that continuance of the pregnancy would threaten the life or gravely impair the mental or physical health of the woman," (2) there was "substantial risk that the child would be born with grave physical or mental defect," or (3) the pregnancy resulted from promptly reported rape or incest.255 This statute did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed. Pursuant to Roe, the abortion statutes were declared unconstitutional by the South Carolina Supreme Court in State v. Lawrence,256 and were repealed in 1974.257 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability258

South Dakota

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"259 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).260 Pursuant to Roe, the former statute was declared unconstitutional by the South Dakota Supreme Court in State v. Munson,261 and both statutes were later repealed.262 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. In 2005, South Dakota enacted a "trigger" statute which would prohibit abortion, except "to preserve the life of the pregnant female," which takes effect "on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy"263 Recently, South Dakota enacted a statute to prohibit abortions except to prevent the death of the pregnant woman.264 The statute was to take effect July 1, 2006, but, pursuant to a citizen initiative, its effective date was suspended while the statute was referred to the voters in a law referendum. On November 7, 2006, the voters rejected the statute. The earlier "trigger" statute, however, remains on the books to take effect once state authority over abortion has been restored by the Supreme Court.

Tennessee

The pre-Roe statutes prohibited performance of an abortion unless the procedure was necessary "to preserve the life of the mother."265 The substantive provisions of these statutes were repealed with the enactment of post-Roe legislation,266 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.267 Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Tennessee would be barred by a decision of the Tennessee Supreme Court recognizing a fundamental right to abortion based on state constitutional grounds (privacy).268

Texas

The principal pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was undertaken "for the purpose of saving [her] life."269 These statutes were declared unconstitutional in Roe v. Wade.270 Enforcement of the statutes was not enjoined. Although the pre-Roe abortion statutes have not been expressly repealed,271 the United States Court of Appeals for the Fifth Circuit has held that the statutes have been repealed by implication with the enactment of significant post-Roe legislation regulating the practice of abortion.272 That holding is not binding upon a state court, but may be persuasive. Whether the pre-Roe statutes would be enforceable if Roe v. Wade were overruled thus depends on whether they have been repealed by implication, a question on which no state court has pronounced an opinion to date.273

Utah

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"274 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).275 Pursuant to Roe, these statutes were declared unconstitutional in an unreported decision of a three-judge federal district court.276 The statutes were repealed in 1973.277

In 1991, Utah enacted comprehensive new abortion statutes.278 Under those statutes, an abortion could be performed at any time of pregnancy if the procedure was "necessary to save the pregnant's woman's life," "to prevent grave damage to the pregnant woman's medical health," or "to prevent the birth of a child that would be born with grave defects."279 An abortion could also be performed during the first twenty weeks of gestation where the pregnancy resulted from a reported act of rape or incest.280 Those statutes were declared unconstitutional by the federal courts.281 The post-Roe statutes have not been repealed,282 and would be enforceable if Roe v. Wade were overruled. Nevertheless, the statutory language allowing abortion "to prevent grave damage to the pregnant woman's medical health," could be subject to abuse. The Abortion Task Force Committee that drafted the bill that the legislature enacted considered and rejected a definition of the "grave danger to maternal health" exception that would have excluded mental health.283

Vermont

The principal pre-Roe statute prohibited performance of an abortion on a woman unless the procedure was "necessary to preserve her life."284 In Beacham v. Leahy285 a pre-Roe decision, the Vermont Supreme Court held that the abortion statute is unconstitutional because it arbitrarily and unreasonably prevents a woman from obtaining a safe and antiseptic abortion from a physician. Although the preRoe statute has not been repealed,286 the decision in Beacham v. Leahy would prevent that statute from being enforced. The legality of abortions would not be affected by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy.

Virginia

The pre-Roe statutes were based on § 230.3 of the Model Penal Code.287 An abortion could be performed only by a licensed physician in an accredited hospital when (1) continuation of the pregnancy was likely to result in the death of the woman or "substantially impair" her mental or physical health, (2) there was a "substantial medical likelihood" that "the child [would] be born with an irremediable and incapacitating mental or physical defect," or (3) the pregnancy resulted from incest or promptly reported rape.288 The statutes did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed.

The pre-Roe statutes were repealed in 1975,289 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.290

Washington

Washington had two sets of pre-Roe abortion statutes. Older statutes prohibited performance of an abortion upon a woman unless the procedure was "necessary to preserve her life or that of [her] child,"291 and made a woman's participation in her own abortion a criminal offense (subject to the same exception).292 In November 1970, however, the voters approved by referendum a new abortion act.293 This act, which by its terms did not repeal the older statutes,294 allowed abortion on demand of a woman "not quick with child and not more than four lunar months after conception."295 Following Roe v. Wade, the attorney general stated that the hospitalization requirement in the statutes adopted in November 1970 was unenforceable during the first trimester of pregnancy, and that the residency requirement was also unconstitutional.296 The parental consent requirement was declared unconstitutional on federal constitutional grounds by the Washington Supreme Court in State v. Koome.297 Washington repealed all of its pre-Roe statutes in 199 1,298 and the overruling of Roe v. Wade would not revive those statutes. Abortions could be performed for any reason before viability, and for virtually any reason after viability.299

West Virginia

The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was done "in good faith, with the intention of saving the life of [the] woman or [her] child."300 Pursuant to Roe, the statute was declared unconstitutional by a federal court of appeals in Doe v. Charleston Area Medical Center, Inc.301 The statute has not been repealed,302 and may be enforceable if Roe v. Wade were overruled. Because of the West Virginia Supreme Court of Appeals decision in Women's Health Center of West Virginia, Inc. v. Panepinto303 however, there is some uncertainty as to the enforceability of the pre-Roe statute. In Panepinto, the state supreme court struck down state restrictions on public funding of abortions performed on indigent women. The basis of the decision was that the restrictions violated the equal protection guarantee of the state constitution because they discriminated against the exercise of a federal constitutional right. The court, however, declined to decide whether the state constitution protects a right to abortion separate from and independent of Roe v. Wade.30* Whether Panepinto would allow enforcement of the pre-Roe abortion statute is uncertain and undecided.

Wisconsin

The pre-Roe statute prohibited the performance of an abortion unless the procedure was "necessary to save the life of the mother."305 In Babbitz v. McCann,306 a three-judge federal district court declared the statute unconstitutional, insofar as it prohibited abortions before quickening (16-18 weeks gestation). The same court thereafter permanently enjoined enforcement of the statute.307 That injunction, however, was subsequently vacated by the Supreme Court.308 The pre-Roe statute, which has not been repealed,309 would be enforceable if Roe v. Wade were overruled.310

Wyoming

The principal pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was "necessary to preserve her life,"311 and made a woman's participation in her own abortion a criminal offense "except when necessary for the purpose of saving the life of the mother or the child."312 Pursuant to Roe, the statutes were declared unconstitutional by the Wyoming Supreme Court in Doe v. Burk?n and were later repealed.314 The repealed pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and depending upon how the post-viability statute is interpreted, for virtually any reason thereafter.315

Conclusion

As the foregoing survey indicates, more than two-thirds of the States have repealed their pre-Roe statutes or have amended those statutes to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability (no reviewing court has ever upheld a law restricting postviability abortions). Those statutes would not be revived if Roe were overruled. Only three of those States-Louisiana, Rhode Island and Utah-have enacted postRoe statutes purporting to prohibit some or most abortions throughout pregnancy (those statutes have been declared unconstitutional by the federal courts and are currently enforceable). Louisiana and two other States that have repealed their preRoe statutes-North Dakota and South Dakota-have enacted "trigger" statutes that would prohibit abortions in almost all circumstances if state authority to regulate and prohibit abortion is restored. Of the foregoing States, only Louisiana, North Dakota, Rhode Island and South Dakota have enacted post-Roe statutes (or "trigger" statutes) that would effectively prohibit most abortions if Roe, as modified by Casey, were overruled. The legislative history of the Utah statute suggests that abortions could be performed for reasons relating to the mental health of the pregnant woman, an exception which, based upon the experience of States (particularly California) before Roe, proved to be unworkable.

Of the slightly less than one-third of the States that have not repealed their pre-Roe statutes, most would be ineffective in prohibiting most abortions, either because the statutes, by their terms or as interpreted, allow abortion on demand (Hawaii and New York), for a broad range of reasons, including mental health (Colorado, Delaware, Massachusetts and New Mexico), or for undefined reasons of health (Alabama), and/or because of state constitutional limitations (Massachusetts, Mississippi, New Mexico, New York, Vermont and possibly Arizona and West Virginia). In yet other States, pre-Roe statutes prohibiting abortion may have been repealed by implication with the enactment of comprehensive post-Roe statutes regulating abortion, as the Fifth Circuit has already determined with respect to the Texas statutes struck down in Roe v. Wade. Only three States that have not repealed their pre-Roe statutes would prohibit most abortions throughout pregnancy-Michigan, Oklahoma and Wisconsin. In addition, an unrepealed provision of the pre-Roe Arkansas statute probably would prohibit all abortions.

Taking into account both pre-Roe and post-Roe enactments, no more than twelve States-Arizona, Arkansas, Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota, Texas, Utah, West Virginia and Wisconsin-and very possibly as few as eight States-Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota, Wisconsin and probably Arkansas-would have enforceable statutes on the books that would prohibit most abortions in the event Roe and Casey are overruled (the Arizona and West Virginia statutes may be unenforceable on state constitutional grounds; the Texas statutes may have been repealed by implication; and the Utah statute, depending upon how it is interpreted, may not effectively prohibit most abortions). These eight States account for less than 10% of the total population in the United States. In the other forty-two States (and the District of Columbia), which account for more than 90% of the population, abortion would be legal for most or all reasons throughout pregnancy.