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

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

Maryland

The principal pre-Roe statute was based on [section] 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exception of the conscience provisions, all of the provisions of the pre-Roe statutes, recodified in 1987, (137) were repealed in 1991.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, [section] 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 (142) The pre-Roe statute has not been repealed.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)