principal pre-Roe statutes were based on § 230.3 of
the Model Penal Code. The statutes
prohibited performance of an abortion on a pregnant woman unless
the procedure was a “therapeutic abortion,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). An
abortion could be performed at any time when continuation of
the pregnancy was “likely to result in the death of the mother.” An abortion
could be performed within the first twenty weeks of gestational
age when (1) there was “substantial risk of the birth of [a]
child with grave and permanent physical deformity or mental
retardation,” (2) the pregnancy resulted from incest or rape,
or (3) continuation of the pregnancy would involve “substantial
risk of permanent injury to the physical or mental health of
the mother.” The pre-Roe statutes
have not been declared unconstitutional, nor has their enforcement
been enjoined. The
statutes have not been repealed, and
would enforceable if Roe v. Wade were overruled. The
exception in the statute for mental health, however,
would allow almost all abortions to be performed throughout
the twentieth week of gestation. After the twentieth week,
however, abortions could be performed only if continuation
of the pregnancy was “likely to result in the death of the
Laws ch. 145 (1969), id. ch. 235, codified as Del. Code Ann. tit. 11, §§ 222(21), 651-654
(1975); id. tit. 24, §§ 1766(b), 1790-1793 (1975).
Del. Code Ann. tit. 11, § 651. A “therapeutic
abortion” was one performed pursuant to title 24. Id. § 222(21).
Id. § 652. No
prosecutions were reported under this statute.
tit. 24, §§ 1790(a)(1), -(b)(1).
Id. § 1790(a)(2)-(4). The
law imposed other conditions. An abortion could be performed
only in an accredited hospital and had to be approved by
a hospital abortion review authority. Two physicians had
to certify that the procedure was justified under one of
the circumstances specified in the statute (except in cases
where the pregnancy resulted from rape, in which case the
Attorney General had to certify that there was probable
cause to believe that the alleged rape did occur). Id. §§ 1790(a),
1790(a)(3)(B), -(b)(2), -(c). In the case of an unmarried
minor under the age of 19 or a mentally ill or incompetent
woman, the written consent of her parents or guardian was
required. Id. § 1790(b)(3).
upon an Attorney General opinion that the statutes were
unconstitutional and a formal policy not to enforce them,
a challenge to the constitutionality of the statutes was
dismissed for want of a “justiciable controversy.” Delaware
Women’s Health Organization, Inc. v. Weir, 441 F.Supp.
497, 499 n. 9 (D. Del. 1977).
Code Ann. tit. 11, §§ 222(26), 651-54 (2001 & Supp.
2004); tit. 24, §§ 1766(b), 1790-93 (1997).
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).
Del. Code Ann. tit. 24, § 1790(b)(1)