principal pre-Roe statutes, based upon an 1860 law,
prohibited performance of an abortion on a woman unless it
was “necessary to preserve her life or that of her unborn child,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). In
a pre-Roe decision, those statutes were declared unconstitutional
by a three-judge federal district court. Enforcement
of the statutes was not enjoined. After the district court
entered its judgment and before the case was remanded by the
Supreme Court, Connecticut enacted a new abortion statute with
provisions similar to those previously invalidated by the federal
district court. Section
1 of the Act stated in part that it was “[t]he public policy
of the state and the intent of the legislature to protect and
preserve human life from the moment of conception . . . .” This
statute was also declared unconstitutional (and permanently
enjoined) by the same three-judge federal district court. On
remand from the Supreme Court, the federal district court held
that the older statutes had not been repealed with the enactment
of the newer statute and declared both sets of statutes unconstitutional
under Roe and permanently enjoined their enforcement. The
pre-Roe statutes were repealed in 1990, and would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.
Conn. Gen. Stat. Ann. § 53-29 (West
Conn. Gen. Stat. Ann. § 53-30 (West 1958). No
prosecutions were reported under this statute.
Abele v. Markle, 342 F.Supp. 800 (D. Conn. 1972), judgment
vacated and cause remanded for consideration of question
of mootness, 410 U.S. 951 (1973).
Conn. Acts 1, § 1 (Spec. Sess.), codified as Conn Gen. Stat. Ann. § 53-31a (West Supp.
Abele v. Markle, 351 F.Supp. 224 (D. Conn. 1972), judgment
vacated and cause remanded for further proceedings in
Roe v. Wade, 410 U.S. 951 (1973).
v. Markle, 369 F.Supp. 807 (D. Conn. 1973).
Acts 90-113, § 4 (Reg. Sess.).
its pre-Roe statutes, Connecticut enacted a new
section which provides that “The decision to terminate
a pregnancy prior to the viability of the fetus shall be
solely that of the pregnant woman in consultation with
her physician.” Id. § 3(a), codified as Conn.
Gen. Stat. § 19a-602(a) (West 2003). No such statement
of public policy is required to make abortion legal in
any State. 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, Connecticut’s post-viability
statute, see Conn.
Gen. Stat. ann. § 19a-602(b) (West 2003), 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.