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

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

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 (89) These statutes were repealed in 1973, (90) and would not be revived by a decision overruling Roe v. Wade.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to Roe, this statute was declared unconstitutional by the Illinois Supreme Court in People v. Frey, (93) and was later repealed.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 (98) Both statutes were repealed in 1977, (99) and neither would be revived by a decision overruling Roe v. Wade.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Roe, this statute was declared unconstitutional by a three-judge federal district court in Doe v. Turner, (102) and was repealed in 1976.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 [section] 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)