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Illinois

The principal pre-Roe statute prohibited performance of an abortion unless the procedure was “necessary for the preservation of the woman’s life.”1  Pursuant to Roe, this statute was declared unconstitutional by the Illinois Supreme Court in

People v. Frey,2 and was later repealed.3 The statute would not be revived by a decision overruling Roe v. Wade.4  Abortions could be performed for any reason before viability, and for virtually any reason after viability.5

 



1 Ill. Rev. Stat. ch. 38, ¶ 23-1 (1971).

2 294 N.E.2d. 257 (Ill. 1973).  Prior to the Supreme Court’s decision in Roe v. Wade, the Illinois Supreme Court rejected an attempt to engraft mental or psychiatric grounds onto the statute.  See People ex rel. Hanrahan v. White, 285 N.E.2d 129 (Ill. 1972). The pre-Roe statute was also struck down by a three-judge federal district court.  See Doe v. Scott, 321 F.Supp. 1385 (N.D. 1971), vacated and remanded sub nom. Hanrahan v. Doe, 410 U.S. 950 (1973).

3 Ill. Public Act 78-225, § 10 (1973).

4 The preamble to the Illinois Abortion Act of 1975 states that if the decisions of the United States Supreme Court recognizing a right to abortion are “ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.”  720 Ill. Comp. Stat. Ann. 510/1 (West 2003).  In the absence of new legislation criminalizing abortion (the pre-Roe statute having been repealed), the preamble would not, by its own terms, make abortion illegal.  It contains no operative provisions and authorizes no punishment.  Conduct is not criminal in Illinois unless a statute defines the particular conduct as criminal.  See 720 Ill. Comp. Stat. Ann. 5/1-3 (West 2002).  Moreover, one General Assembly cannot bind another to enact legislation.  See Effects on Illinois if Roe v. Wade is Modified or Overruled, Illinois General Assembly Legislative Research Unit (Feb. 9, 1989).

5 Because of its undefined health exception, the Illinois post-viability statute, see 720 Ill. Comp. Stat. Ann. 510/5 (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.

 

 
 
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May be reprinted without permission but with attribution to the Life Legal Defense Fund.