pre-Roe statute was based on § 230.3 of the Model Penal
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.” Pursuant
to Roe, major portions of the 1972 law were declared
unconstitutional by a three-judge federal district court in Coe
v. Gerstein, and by
the Florida Supreme Court in Wright v. State. The statute
was later repealed. 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. 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).
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
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).
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).
708 (Fla. 1977).
Laws 1618, ch. 79-302, § 5.
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.
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.