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The pre-Roe statutes prohibited performance of an abortion upon a pregnant woman unless it was “necessary to preserve her life,”1 and punished the offense as a homicide if the woman died as a result thereof.2  Pursuant to Roe, these statutes were declared unconstitutional by the Kentucky Court of Appeals (the name of Kentucky’s highest court before 1976) in Sasaki v. Commonwealth,3 and were repealed in 1974.4  The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade.5  Abortions could be performed for any reason before viability, and for virtually any reason after viability.6


1 Ky. Rev. Stat. Ann.. § 436.020 (Michie 1962).

2 Id. § 435.040.

3 497 S.W.2d 713 (Ky. 1973)  In its original decision, the Kentucky Court of Appeals upheld the statute.  See Sasaki v. Commonwealth, 485 S.W.2d 897 (Ky. 1972), vacated and remanded, 410 U.S. 951 (1973).  Prior to Roe, a three-judge federal district court also upheld the statute.  See Crossen v. Attorney General, 344 F.Supp. 587 (E.D. Ky. 1972), vacated and remanded, 410 U.S. 950 (1973).

4 1974 Ky. Acts 484, 487, ch. 255, § 19; 1974 Ky. Acts 831, 889, ch. 406, § 336.

5 Kentucky has enacted a statute stating that “[i]f . . . the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.”  Ky. Rev. Stat. Ann. § 311.710(5) (Michie 2001).  In the absence of new legislation criminalizing abortion (the pre-Roe statutes having been repealed), this expression of legislative policy would not, by its own terms, make abortion illegal.  It contains no operative provisions and authorizes no punishment.  Conduct is not criminal in Kentucky unless a statute defines the particular conduct as criminal. See Ky. Rev. Stat. Ann. § 500.020 (Michie 1996).

6 Because of its undefined health exception, Kentucky’s post-viability statute, see Ky. Rev. Stat. Ann. § 311.780 (Michie 2001), 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.