The principal pre-Roe statutes were based on § 230.3 of the Model Penal Code.1 The statutes prohibited performance of an abortion on a pregnant woman unless the procedure was a “therapeutic abortion,”2 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).3 An abortion could be performed at any time when continuation of the pregnancy was “likely to result in the death of the mother.”4 An abortion could be performed within the first twenty weeks of gestational age when (1) there was “substantial risk of the birth of [a] child with grave and permanent physical deformity or mental retardation,” (2) the pregnancy resulted from incest or rape, or (3) continuation of the pregnancy would involve “substantial risk of permanent injury to the physical or mental health of the mother.”5 The pre-Roe statutes have not been declared unconstitutional, nor has their enforcement been enjoined.6 The statutes have not been repealed,7 and would enforceable if Roe v. Wade were overruled. The exception in the statute for mental health,8 however, would allow almost all abortions to be performed throughout the twentieth week of gestation. After the twentieth week, however, abortions could be performed only if continuation of the pregnancy was “likely to result in the death of the mother.”9
1 57 Del. Laws ch. 145 (1969), id. ch. 235, codified as Del. Code Ann. tit. 11, §§ 222(21), 651-654 (1975); id. tit. 24, §§ 1766(b), 1790-1793 (1975).
2 Del. Code Ann. tit. 11, § 651. A “therapeutic abortion” was one performed pursuant to title 24. Id. § 222(21).
3 Id. § 652. No prosecutions were reported under this statute.
4 Id. tit. 24, §§ 1790(a)(1), -(b)(1).
5 Id. § 1790(a)(2)-(4). The law imposed other conditions. An abortion could be performed only in an accredited hospital and had to be approved by a hospital abortion review authority. Two physicians had to certify that the procedure was justified under one of the circumstances specified in the statute (except in cases where the pregnancy resulted from rape, in which case the Attorney General had to certify that there was probable cause to believe that the alleged rape did occur). Id. §§ 1790(a), 1790(a)(3)(B), -(b)(2), -(c). In the case of an unmarried minor under the age of 19 or a mentally ill or incompetent woman, the written consent of her parents or guardian was required. Id. § 1790(b)(3).
6 Based upon an Attorney General opinion that the statutes were unconstitutional and a formal policy not to enforce them, a challenge to the constitutionality of the statutes was dismissed for want of a “justiciable controversy.” Delaware Women’s Health Organization, Inc. v. Weir, 441 F.Supp. 497, 499 n. 9 (D. Del. 1977).
7 See Del. Code Ann. tit. 11, §§ 222(26), 651-54 (2001 & Supp. 2004); tit. 24, §§ 1766(b), 1790-93 (1997).
8 As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).
9 Del. Code Ann. tit. 24, § 1790(b)(1) (1997).
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