Hawaii

Hawaii

The pre-Roe statute explicitly allowed abortion on demand prior to viability and implicitly allowed abortion after viability for any reason.^¹ The statute, which has not been repealed,^² has not been declared unconstitutional nor has its enforcement been enjoined. Recently, the Hawaii Legislature amended the pre-Roe statute to eliminate the hospitalization and residency requirements,^³ which were unenforceable under Doe v. Bolton. The legality of abortion would not be affected by a decision overruling Roe v. Wade. Abortions could be performed for any reason before or after viability.

^¹ HAW. REV. STAT. § 453-16 (Supp. 1971). The statute prohibited “abortion” unless the procedure was performed by a licensed physician or surgeon, or a licensed osteopathic physician and surgeon, in a hospital licensed by the Hawaii Department of Health or operated by the federal government or an agency thereof. See §§ 453-16(a)(1), -(2). The statute also imposed a residency requirement. See § 453-16(a)(3). The term “abortion,” however, was limited to the intentional termination of a pregnancy of a “nonviable fetus.” See § 453-16(b) (emphasis added). As a result, the “prohibition” set forth in the first sentence of the statute did not prohibit (and does not prohibit) any abortion of a viable fetus.

^² Id. § 453-16 (2002).

^³ See H.B. No. 1242 H.D. 1, 2006 Haw. Sess. Laws Act 35 (signed April 26, 2006).