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 The pre-Roe statute was based on § 230.3 of the Model Penal Code.1  The statute provided that an abortion could be performed at any stage of pregnancy when (1) “continuation of the pregnancy would substantially impair the life or health of the female,” (2) there was “substantial risk that the continuation of the pregnancy would result in the birth a child with a serious physical or mental defect,” or (3) there was “reasonable cause to believe that the pregnancy resulted from rape or incest.”2  Pursuant to Roe, major portions of the 1972 law were declared unconstitutional by a three-judge federal district court in Coe v. Gerstein,3 and by the Florida Supreme Court in Wright v. State.4  The statute was later repealed.5  The overruling of Roe v. Wade would not revive the pre-Roe statute.  Abortions could be performed for reason before the third trimester, and for virtually any reason thereafter.6  Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Florida would be barred by the Florida Supreme Court’s decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).7


1 1972 Fla. Laws 608, ch. 72-196.  The Florida legislature enacted the 1972 statute in response to a decision of the Florida Supreme Court decision the same year striking down, on vagueness grounds, older statutes that prohibited abortion unless the procedure was necessary to preserve the life of the pregnant woman.  See State v. Barquet, 262 So.2d 431 (Fla. 1972), invalidating  Fla. Stat. Ann. §§ 782.10, 791.10 (West 1965).

2 1972 Fla. Laws 608, ch. 72-196, § 2.  The law imposed other conditions.  Abortions could be performed only by licensed physicians in approved facilities.  Id. §§ 1, 2.  Except in emergency cases, an unmarried woman under 18 years of age had to obtain the written consent of either parent or of her guardian; a married woman living with her husband had to obtain his written consent.  Id. §§ 3(1), -(2).

3 376 F.Supp. 695 (S.D. Fla. 1974), appeal dismissed for want of jurisdiction, cert. denied, 417 U.S. 279 (1974), aff’d sub nom. Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975), aff’d sub nom. Gerstein v. Coe, 428 U.S. 901 (1976).

4 351 So.2d 708 (Fla. 1977).

5 1979 Fla. Laws 1618, ch. 79-302, § 5.

6 Because of its undefined health exception, Florida’s third-trimester statute, see Fla. Stat. Ann. § 390.0111(1) (West 2002), would not effectively prohibit abortions at that stage of pregnancy (defined as after the twenty-fourth week of pregnancy, see Fla. Stat. Ann. § 390.011(8) (West 2002)).  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.

7 In re T.W. 551 So.2d 1186, 1196 (Fla. 1989) (striking down parental consent statute).  More recently, the Florida Supreme Court invalidated a parental notice statute.  See North Florida Women’s Health and Counseling Services, Inc. v. State of Florida, 866 So.2d 612 (Fla. 2003).  Although that decision has been effectively overturned by an amendment to the Florida Constitution adopted on Nov. 2, 2004, see Fla. Const. art. X, § 22,  the amendment does not purport to overturn the Florida Supreme Court’s doctrine on privacy rights generally or abortions specifically other than recognizing the authority of the legislature to enact a parental notice statute.


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