The pre-Roe abortion statutes were based on § 230.3 of the Model Penal Code.1 Sections 16-82 and 16-83 prohibited performance of an abortion on a pregnant woman unless the procedure was “necessary to preserve her life or the life of [her] child,”2 and § 16-84 made a woman’s participation in her own abortion a criminal offense.3 Section 16-87 excepted from these sections abortions performed on pregnant women by licensed physicians in licensed hospitals when (1) there was “substantial risk that continuance of the pregnancy would threaten the life or gravely impair the mental or physical health of the woman,” (2) there was “substantial risk that the child would be born with grave physical or mental defect,” or (3) the pregnancy resulted from promptly reported rape or incest.4 This statute did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed. Pursuant to Roe, the abortion statutes were declared unconstitutional by the South Carolina Supreme Court in State v. Lawrence,5 and were repealed in 1974.6 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before viability, and for virtually any reason after viability.7
1 S.C. Code Ann. § 16-82 et seq. (Law. Co-op. Supp. 1971).
2 Id. §§ 16-82, 16-83.
3 Id. § 16-84. No prosecutions were reported under this statute.
4 Id. § 16-87. The law imposed other conditions. Abortions could be performed only in a licensed hospital, after three physicians had examined the woman and certified in writing to the existence of the circumstances justifying the abortion under the law. Id. § 16-87(1). Except in emergency cases, the woman had to be a resident of the State for ninety days immediately preceding the operation. Id. If the woman seeking the abortion was a minor or an incompetent, the written consent of her parents or guardian was required and, if she was married, the written consent of her husband or guardian. Id. 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).
5 198 S.E.2d 253 (S.C. 1973).
6 1974 S.C. Acts 2837, 2841, Act No. 1215, § 8.
7 South Carolina’s post-viability statute, see S.C. Code Ann. § 44-41-20(c) (Law. Co-op. 2002), would not effectively prohibit post-viability abortions because it allows abortions for mental, as well as physical, health reasons. 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).
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