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

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

California

The pre-Roe abortion statutes were based upon [section] 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 (35) Sections 274 and 275 of the Penal Code were repealed in 2000; (36) the Therapeutic Abortion Act was repealed in 2002.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. (38) 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 [section] 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. (45) Enforcement of the statute was not enjoined.