pre-Roe abortion statutes were based upon § 230.3 of
the Model Penal Code. The California
Penal Code prohibited abortions not performed in compliance
with the “Therapeutic Abortion Act” of 1967, and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). The
Therapeutic Abortion Act authorized the performance of an abortion
on a pregnant woman if the procedure was performed by a licensed
physician and surgeon in an accredited hospital, and was unanimously
approved in advance by a medical staff committee. An
abortion could not be approved unless the committee found that
there was a “substantial risk that continuance of the pregnancy
would gravely impair the physical or mental health of the mother,” or
that “[t]he pregnancy resulted from rape or incest.” An
abortion could not be performed on grounds of rape or incest
unless there was probable cause to believe that the pregnancy
resulted from rape or incest. No abortion
could be approved after the twentieth week of pregnancy for
a pre-Roe decision, the California Supreme Court declared
substantial provisions of the Therapeutic Abortion Act unconstitutional
on state and federal due process grounds (vagueness). Sections
274 and 275 of the Penal Code were repealed in 2000; the Therapeutic
Abortion Act was repealed in 2002. None
of these statutes would 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.
regardless of Roe, any attempt to enact meaningful restrictions
on abortion in California would be precluded by the California
Supreme Court’s 1981 decision in Committee to Defend Reproductive
Rights v Myers. In Myers,
the state supreme court struck down restrictions on public
funding of abortion on state constitutional grounds (privacy). In
the course of its decision, the court stated that under the
privacy guarantee of the state constitution, “all women in
this state–rich and poor alike–possess a fundamental constitutional
right to choose whether or not to bear a child.”
Cal. Health & Safety Code § 25950 et
seq. (West Supp. 1971), renumbered as § 123400 et
seq. in 1995. See Cal.
Health & Safety Code § 123400 et seq.
Cal. Pen. Code § 274 (West Supp. 1971).
Id. § 275. No
prosecutions were reported under this statute.
Cal. Health & Safety Code § 25951
(West Supp. 1971), renumbered as
other statutes based upon § 230.3 of the Model Penal Code,
the California Therapeutic Abortion Act did not expressly
authorize an abortion for reasons of genetic defect. Alone
among pre-Roe statutes with a mental health exception,
California attempted to define what would qualify as a
mental health related abortion in terms at least as strict
as the standard for civil commitment, i.e., that
the pregnant woman “would be dangerous to herself or to
the person or property of others or is in need of supervision
or restraint.” Id. § 25954, renumbered as § 123415
in 1995. Notwithstanding that narrow definition, more than
60,000 abortions were performed in California in 1970,
98.2% of which were performed for mental health reasons. People
v. Barksdale, 503 P.2d 257, 265 (Cal. 1972). In Barksdale,
the California Supreme Court expressed “[s]erious doubt
. . . that such a considerable number of pregnant women
could have been committed to a mental institution” as the
result of becoming pregnant. Id. The experience
in California strongly suggests that mental health exceptions
in abortion statutes are inherently manipulable and subject
Id. § 25952,
renumbered as § 123407 in 1995.
Id. § 25953,
renumbered as § 123410 in 1995.
People v. Barksdale, supra, n. 5.
Stat. ch. 692, § 2.
Cal. Stat. ch. 385, §§ 2-7.
the Therapeutic Abortion Act, California enacted the “Reproductive
Privacy Act.” Id. § 8, codified as Cal.
Health & Safety Code § 123460 et seq.
(West Supp. 2005). The Act declares that “every individual
possesses a fundamental right of privacy with respect to
personal reproductive decisions.” Id. § 123462. Consistent
with that declaration, the Act expresses the public policy
of the State of California that, “Every woman has the fundamental
right to choose to bear a child or to choose and to obtain
an abortion, except as specifically limited by this article,” id.. § 123462(b),
and that “The state shall not deny or interfere with a
woman’s fundamental right to choose to bear a child or
to choose to obtain an abortion, except as specifically
limited by this article.” Id. § 123462(c). In
repealing their pre-Roe statutes, several other
States have enacted similar expressions of public policy. No
such statement of public policy is required to make abortion
legal. In the absence of specific legislation making abortion
criminal (either pre- or post-Roe), abortion would
remain legal even if Roe v. Wade were overruled.
of its undefined health exception, the California post-viability
statute, see Cal.
Health & Safety Code § 123468 (West Supp. 2005),
would not effectively prohibit post-viability abortions. In
interpreting the undefined health exception in the pre-Roe District
of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ .
. . includes psychological as well as physical well-being.” United
States v. Vuitch, 402 U.S. 62, 72 (1971). See also
Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining
whether an abortion is medically necessary, “all factors– physical,
emotional, psychological, familial, and the woman’s age–relevant
to the well-being of the patient” may be considered). There
would be few, if any, abortions that could not be justified
on psychological or emotional grounds.
779 (Cal. 1981).
625 P.2d at 784. In a decision striking down California’s
parental consent statute sixteen years later, the California
Supreme Court reaffirmed this holding. See American
Academy of Pediatrics v. Lungren, 940 P.2d 797, 809-10
(Cal. 1997) (“the protection afforded by the California
Constitution of a pregnant woman’s right of choice is broader
than the constitutional protection afforded by the federal
Constitution as interpreted by the United States Supreme