The legal status of abortion in the States if Roe v. Wade is overruled

Issues in Law & Medicine, Summer, 2007 by Paul Benjamin Linton

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 (10) Section 18.16.010(d) was repealed in 1997. (11) 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 Although the pre-Roe statutes have not been expressly repealed, (17) they may not be enforceable, even if Roe v. Wade were overruled, because of a state supreme court decision striking down restrictions on public funding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 (18) It is also possible that the statutes have been repealed by implication with the enactment of substantial post-Roe legislation regulating abortion.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 [section] 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 (22) In 1980, a three-judge federal district court held that the substantive provisions of the 1875 law had been repealed by implication with the enactment of the 1969 law, and then declared unconstitutional and enjoined the provisions of the 1969 law.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 [section] 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 [section] 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 [section] 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)