principal pre-Roe statute prohibited performance of
an abortion unless the procedure was “necessary for the preservation
of the woman’s life.” Pursuant
to Roe, this statute was declared unconstitutional by
the Illinois Supreme Court in
v. Frey, and was
later repealed. The
statute would not be revived by a decision overruling Roe
v. Wade. Abortions
could be performed for any reason before viability, and for
virtually any reason after viability.
Ill. Rev. Stat. ch. 38, ¶ 23-1 (1971).
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).
Act 78-225, § 10 (1973).
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pre-Roe statute having been repealed), the preamble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).
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.