The principal pre-Roe statutes, based upon an 1860 law, prohibited performance of an abortion on a woman unless it was “necessary to preserve her life or that of her unborn child,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2 In a pre-Roe decision, those statutes were declared unconstitutional by a three-judge federal district court.3 Enforcement of the statutes was not enjoined. After the district court entered its judgment and before the case was remanded by the Supreme Court, Connecticut enacted a new abortion statute with provisions similar to those previously invalidated by the federal district court.4 Section 1 of the Act stated in part that it was “[t]he public policy of the state and the intent of the legislature to protect and preserve human life from the moment of conception . . . .”5 This statute was also declared unconstitutional (and permanently enjoined) by the same three-judge federal district court.6 On remand from the Supreme Court, the federal district court held that the older statutes had not been repealed with the enactment of the newer statute and declared both sets of statutes unconstitutional under Roe and permanently enjoined their enforcement.7 The pre-Roe statutes were repealed in 1990,8 and would not be revived by a decision overruling Roe v. Wade.9 Abortions could be performed for any reason before viability, and for virtually any reason after viability.10
1 Conn. Gen. Stat. Ann. § 53-29 (West 1958).
2 Conn. Gen. Stat. Ann. § 53-30 (West 1958). No prosecutions were reported under this statute.
3 See Abele v. Markle, 342 F.Supp. 800 (D. Conn. 1972), judgment vacated and cause remanded for consideration of question of mootness, 410 U.S. 951 (1973).
4 See 1972 Conn. Acts 1, § 1 (Spec. Sess.), codified as Conn. Gen. Stat. Ann. § 53-31a (West Supp. 1972).
6 See Abele v. Markle, 351 F.Supp. 224 (D. Conn. 1972), judgment vacated and cause remanded for further proceedings in light of Roe v. Wade, 410 U.S. 951 (1973).
7 Abele v. Markle, 369 F.Supp. 807 (D. Conn. 1973).
8 1990 Conn. Acts 90-113, § 4 (Reg. Sess.).
9 In repealing its pre-Roe statutes, Connecticut enacted a new section which provides that “The decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician.” Id. § 3(a), codified as Conn. Gen. Stat. § 19a-602(a) (West 2003). No such statement of public policy is required to make abortion legal in any State. In the absence of specific legislation making abortion criminal (either pre- or post-Roe), abortion would remain legal even if Roe v. Wade were overruled.
10 Because of its undefined health exception, Connecticut’s post-viability statute, see Conn. Gen. Stat. ann. § 19a-602(b) (West 2003), would not effectively prohibit post-viability abortions. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds.
Life Legal Defense Fund. All rights reserved.
May be reprinted without permission but with attribution to Life Legal Defense Fund.