The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was “necessary to preserve her life,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2 Pursuant to Roe, these statutes were declared unconstitutional in an unreported decision of a three-judge federal district court.3 The statutes were repealed in 1973.4
In 1991, Utah enacted comprehensive new abortion statutes.5 Under those statutes, an abortion could be performed at any time of pregnancy if the procedure was “necessary to save the pregnant woman’s life,” “to prevent grave damage to the pregnant woman’s medical health,” or “to prevent the birth of a child that would be born with grave defects.”6 An abortion could also be performed during the first twenty weeks of gestation where the pregnancy resulted from a reported act of rape or incest.7 Those statutes were declared unconstitutional by the federal courts.8 The post-Roe statutes have not been repealed,9 and would be enforceable if Roe v. Wade were overruled. Nevertheless, the statutory language allowing abortion “to prevent grave damage to the pregnant woman’s medical health,” could be subject to abuse. The Abortion Task Force Committee that drafted the bill that the legislature enacted considered and rejected a definition of the “grave danger to maternal health” exception that would exclude mental health.10
1 Utah Code Ann. § 76-2-1 (1953).
2 Id. § 76-2-2. No prosecutions were reported under this statute.
3 See Doe v. Rampton, No. C-234-70 (D. Utah 1973). Prior to Roe, the same three-judge district court had upheld the pre-Roe statutes. See Doe v. Rampton, No. C-234-70 (D. Utah. Sep. 29, 1971), vacated and remanded, 410 U.S. 950 (1973).
4 1973 Utah Laws 584, 684; ch. 196, (sub.) ch. 10, pt. 14, § 76-10-1401.
5 See 1991 Utah Laws ch. 2 (1st Spec. Sess.)
6 Utah Code Ann. §§ 76-7-302(2)(a), -(d), -(e) (Supp. 2004).
7 Id. §§ 76-7-302(b), -(c).
8 See Jane L. v. Bangerter, 809 F.Supp. 865 (D. Utah 1992), aff’d in part, rev’d in part, 61 F.3d 1493 (10th Cir. 1995), reversed and remanded sub nom. Leavitt v. Jane L., 518 U.S. 137 (1996), on remand, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997).
9 See nn. 6, 7, supra.
10 See Jane L. v. Bangerter, 794 F.Supp. 1537, 1544 (D. Utah 1992). 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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