The principal pre-Roe statute was based on § 230.3 of the Model Penal Code.1 An abortion could be performed at any stage of pregnancy when (1) there was “substantial risk that a continuance of the pregnancy would impair the physical or mental health of the mother,” (2) there was “substantial risk . . . that the child would be born with physical or mental defect,” or (3) “the pregnancy resulted from
rape, incest or other felonious intercourse.”2 This statute was repealed in 1992,3 and would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability. Under a separate statute, however, abortions could be performed after viability only to preserve the life of the pregnant woman or to prevent substantial and irreversible impairment of a major bodily function.4
1 Kan. Stat. Ann. § 21-3407 (Vernon 1971).
2 Id. § 21-3407(2). The law imposed other conditions. Abortions could be performed only by licensed physicians in licensed, accredited hospitals. Id. §§ 21-3407(2), 65-444. Except in emergency cases, no abortion could be performed unless three physicians certified in writing the circumstances that existed that justified the abortion. Id. §§ 21-3407(2)(a), -(b), 65-444. The hospitalization and three-physician concurrence requirements were declared unconstitutional by a three-judge federal district court in a pre-Roe decision. See Poe v. Menghini, 339 F.Supp. 986 (D. Kan. 1972). 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).
3 1992 Kan. Sess. Laws 723, 729, ch. 183, § 9.
4 See Kan. Stat. Ann. § 65-6703 (2002).
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