The pre-Roe statute prohibited performance of an abortion on a pregnant woman “maliciously or without lawful justification.”1 This statute was declared unconstitutional by a three-judge federal court in 1972,2 and was repealed in 1978.3 The pre-Roe statute would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy. Regardless of Roe, any attempt to prohibit abortion (at least before viability) in New Jersey would be barred by the New Jersey Supreme Court’s decisions recognizing a fundamental right to abortion on state constitutional grounds (privacy).4
1 N.J. Stat. Ann. § 2A:87-1 (West 1969). There was little case law interpreting this language, though, at a minimum, it appears that the statute would have allowed those abortions necessary to save the life of the mother. See State v. Moretti, 244 A.2d 499, 504 (N.J. 1968).
2 See Y.W.C.A. of Princeton, N.J. v. Kugler, 342 F.Supp. 1048 (D. N.J. 1972), vacated and remanded, 475 F.2d 1398 (3d Cir. 1973), judgment reinstated, Civil No. 264-70 (D. N.J. July 24, 1973), aff’d mem. op., 493 F.2d 1402 (3d Cir. 1974). Prior to Roe, the New Jersey Supreme Court rejected a vagueness challenge to the statute. See State v. Moretti, supra, n.1.
3 1978 N.J. Laws 482, 687-88, ch. 95, § 2C:98-2.
4 See Right to Choose v. Byrne, 450 A.2d 925, 934 (N.J. 1982) (“The right to choose whether to have an abortion . . . is a fundamental right of all pregnant women”) (striking down restrictions on public funding of abortion); Planned Parenthood of Central New Jersey v. Farmer, 762 A.2d 620 (N.J. 2000) (invalidating parental notice statute).
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