pre-Roe abortion statute was based upon § 230.3 of the
Model Penal Code. 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.” 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. 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. Enforcement
of the statute was not enjoined.
pre-Roe statute has not been repealed, and
would be enforceable if Roe v. Wade were overruled. The
broad exceptions in the statute, however, in particular the
exception for mental health, would
allow almost all abortions to be performed.
Colo. Rev. Stat § 40-6-101 et seq.
(Perm Supp. 1971), renumbered and rearranged as § 18-6-101 et
seq. See Colo.
Rev. Stat. Ann. § 18-6-101 et seq. (West
Id. § 40-6-101(1)(a),
renumbered and rearranged as § 18-6-101(1)(a).
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).
862 (Colo. 1973).
Colo. Rev. Stat. Ann. § 18-6-101 et
seq. (West 2004).
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).