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

• Author: Linton, Paul Benjamin

ABSTRACT: This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe.

More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable.

Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion.

In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States

(and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.

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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. (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)

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...