The principal pre-Roe statute prohibited performance of “unlawful” abortions.1 Although the statute itself did not define what constituted an “unlawful” abortion, in a series of cases the Massachusetts Supreme Judicial Court interpreted the statute to allow abortions for reasons of the pregnant woman’s physical or mental health.2 Pursuant to Roe, § 19 of ch. 272 was declared unconstitutional in an unreported decision of a three-judge federal district court.3 The pre-Roe statute has not been repealed.4 However, in light of the judicially engrafted exceptions for physical and mental health, it is doubtful that the statute would effectively prohibit any abortions, even if Roe v. Wade were overruled.5 Moreover, regardless of Roe, any attempt to prohibit abortion (at least before viability) in Massachusetts would be barred by the Massachusetts Supreme Judicial Court’s decisions recognizing a fundamental right to abortion on state constitutional grounds (due process).6
1 Mass. Gen Laws Ann. ch. 272, § 19 (West 1968).
2 See Kudish v. Board of Registration in Medicine, 248 N.E.2d 264, 266 (Mass. 1969); Commonwealth v. Brunelle, 171 N.E.2d 850, 851-52 (Mass. 1961); Commonwealth v. Wheeler, 53 N.E.2d 4, 5 (Mass. 1944). 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 See Women of the Commonwealth v. Quinn, Civil Action NO. 71-2420-W (D. Mass. Feb. 21, 1973).
4 See Mass. Gen. Laws Ann. ch. 272, § 19 (West 2000).
5 The same may be said of the Massachusetts statute, see Mass. Gen. Laws Ann. ch. 112, § 12M (West 2003), which allows abortions to be performed during or after the twenty-fourth week of pregnancy to save the life of the mother or where continuation of the pregnancy would imposed on her a substantial risk of grave impairment of her physical or mental health.
6 See Moe v. Secretary of Administration & Finance, 417 N.E.2d 387, 397-99 (Mass. 1981) (striking down restrictions on public funding of abortion); Planned Parenthood League of Massachusetts v. Attorney General, 677 N.E.2d 101, 103-04 (Mass. 1997) (partially invalidating parental consent statute). In Moe, the majority opinion stated, “we have accepted the formulation of rights that [Roe] announced as an integral part of our jurisprudence.” 417 N.E.2d at 398.
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