pre-Roe statutes prohibited performance of an abortion
upon a pregnant woman unless it was “necessary to preserve
her life,” and
punished the offense as a homicide if the woman died as a result
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, and
were repealed in 1974. The
pre-Roe statutes 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.
Ky. Rev. Stat. Ann.. § 436.020 (Michie
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).
Acts 484, 487, ch. 255, § 19; 1974 Ky. Acts 831, 889, ch.
406, § 336.
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pre-Roe statutes having been repealed), this expression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
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.