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The pre-Roe abortion statute was based upon § 230.3 of the Model Penal Code.1  Under the statute, an abortion could be performed at any stage of pregnancy (defined as “the implantation of an embryo in the uterus”) when continuation of the pregnancy was likely to result in the death of the woman, “serious permanent impairment” of her physical or mental health, or the birth of a child with “grave and permanent physical deformity or mental retardation.”2  An abortion could be performed within the first sixteen weeks of pregnancy (gestational age) when the pregnancy resulted from rape (statutory or forcible) or incest, and the local district attorney confirmed in writing that there was probable cause to believe that the alleged offense had occurred.3  Pursuant to Roe v. Wade, the limitations on circumstances under which abortions could be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the Colorado Supreme Court in People v. Norton.4  Enforcement of the statute was not enjoined.

The pre-Roe statute has not been repealed,5 and would be enforceable if Roe v. Wade were overruled.  The broad exceptions in the statute, however, in particular the exception for mental health,6 would allow almost all abortions to be performed.


1 Colo. Rev. Stat § 40-6-101 et seq. (Perm Supp. 1971), renumbered and rearranged as § 18-6-101 et seqSee Colo. Rev. Stat. Ann. § 18-6-101 et seq. (West 1986).

2 Id. § 40-6-101(1)(a), renumbered and rearranged as § 18-6-101(1)(a).

3 Id. § 40-6-101(b), renumbered and rearranged as § 18-6-101(1)(b).  The law imposed other conditions.  The procedure had to be unanimously approved by a three-member hospital review board and could be performed only in a hospital.  Id. §§ 40-6-101(1), -(4), renumbered and rearranged as §§ 18-6-101(1), -(4).  If the abortion was requested on mental health grounds, the diagnosis had to be confirmed in writing by a psychiatrist.  Id.§ 40-6-101(a), renumbered and rearranged as § 18-6-101(a).  If the abortion was being sought by a minor, the consent of one of her parents or her guardian was required; if the woman was married, the consent of her husband was required.  Id. § 40-6-101(1), renumbered and rearranged as § 18-6-101(1).

4 507 P.2d 862 (Colo. 1973).

5 Colo. Rev. Stat. Ann. § 18-6-101 et seq. (West 2004).

6 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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May be reprinted without permission but with attribution to the Life Legal Defense Fund.