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The pre-Roe statute explicitly allowed abortion on demand prior to viability and implicitly allowed abortion after viability for any reason.1  The statute, which has not been repealed,2 has not been declared unconstitutional nor has its enforcement been enjoined. Recently, the Hawaii Legislature amended the pre-Roe statute to eliminate the hospitalization and residency requirements,3 which were unenforceable under Doe v. Bolton. The legality of abortion would not be affected by a decision overruling Roe v. Wade. Abortions could be performed for any reason before or after viability.

1 HAW. REV. STAT. § 453-16 (Supp. 1971). The statute prohibited “abortion” unless the procedure was performed by a licensed physician or surgeon, or a licensed osteopathic physician and surgeon, in a hospital licensed by the Hawaii Department of Health or operated by the federal government or an agency thereof. See §§ 453-16(a)(1), -(2). The statute also imposed a residency requirement. See § 453-16(a)(3). The term “abortion,” however, was limited to the intentional termination of a pregnancy of a “nonviable fetus.” See § 453-16(b) (emphasis added). As a result, the “prohibition” set forth in the first sentence of the statute did not prohibit (and does not prohibit) any abortion of a viable fetus.

2 Id. § 453-16 (2002).

3 See H.B. No. 1242 H.D. 1, 2006 Haw. Sess. Laws Act 35 (signed April 26, 2006).


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