principal pre-Roe statute prohibited all abortions. Although § 14:87
did not on its face permit any exceptions, given the requirement
of a specific criminal intent, an
abortion performed to save the life of the mother probably
was lawful. This construction would have been consistent with
another statute that barred disciplinary action against a physician
who performed an abortion for that purpose. Pursuant
to Roe, § 14:87 and § 37:1285(6) were declared unconstitutional
in a pair of three-judge federal district court decisions. Following
the Supreme Court’s decision in Webster v. Reproductive
Health Services, the
Louisiana Attorney General and the District Attorney for New
Orleans Parish sought to reopen the earlier decisions invalidating § 14:87
and enjoining its enforcement. A three-judge federal district
court convened to hear the case held that § 14:87 had been
repealed by implication with the enactment of comprehensive
post-Roe legislation regulating abortion. The legislature
thereafter enacted a new § 14:87 prohibiting abortion except
to preserve the life or health of the unborn child, to save
the life of the mother or to terminate a pregnancy that resulted
from a reported act of rape or incest.
statute was also declared unconstitutional.
the Louisiana Legislature repealed and reenacted § 14:87,
deleting the exceptions for rape and incest, retaining the
life-of-the mother exception and adding a very narrow physical
health exception (preventing permanent impairment of a life-sustaining
organ of a pregnant woman).
The amendments take effect when
Roe v. Wade is overruled or the United States Constitution
is amended to restore the authority of the States to prohibit
14:87 would take effect and be enforceable if Roe v. Wade were
overruled or if the federal constitution were amended to restore
the States’ authority to prohibit abortion.
La. Rev. Stat. Ann. § 14:87 (West 1964).
State v. Sharp, 182 So.2d 517, 518 (La. 1966).
board of medical examiners was empowered to revoke the
license of a physician who performed an abortion “unless
[the procedure was] done for the relief of a woman whose
life appears in peril after due consultation with another
licensed physician.” La.
Rev. Stat. Ann. § 37:1285(6) (West 1964). In Rosen
v. Louisiana Board of Medical Examiners, 318 F.Supp.
1217, 1225 (E.D. La. 1970), vacated and remanded,
412 U.S. 902 (1973), the court construed §§ 14:87 and 37:1285(6) in
pari materia and upheld their constitutionality.
Rosen v. Louisiana State Board of Medical Examiners,
380 F.Supp. 875 (E.D. La. 1974), summarily affirmed,
419 U.S. 1098 (1975); Weeks v. Connick, Civil
Action No. 73-469 (E.D. La. 1976), summarily affirmed
sub nom. Guste v. Weeks, 429 U.S. 1056 (1977). Prior
to Roe, the Louisiana Supreme Court consistently
rejected attacks on the constitutionality of § 14:87. See
State v. Campbell, 270 So.2d 506 (La. 1972); State
v. Scott, 255 So.2d 736 (La. 1971); State v.
Shirley, 237 So.2d 676 (La. 1970); State v.
Pesson, 235 So.2d 568 (La. 1970).
Weeks v. Connick, 733 F.Supp. 1036 (E.D. La. 1990).
Acts, No. 26, codified as La
Rev. Stat. Ann. § 14:87 (West 2004).
Sojourner T. v. Roemer, 772 F.Supp. 930 (E.D. La.
1991), aff’d sub nom. Sojourner T. v. Edwards,
974 F.2d 27 (5th Cir. 1992), cert denied,
507 U.S. 972 (1993).
2006 La. Acts Pub. Act 467, § 2 (signed June
Id. § 1 (adding § 1299.30 to the Louisiana
Revised Statutes Annotated).
from § 14.87, it is unlikely that Louisiana’s post-viability
statute, see La.
Rev. Stat. Ann. § 40:1299.35.4 (West Supp. 2005),
would effectively prohibit post-viability abortions because
it allows such abortions to be performed to preserve the
pregnant woman’s life or health, health not being defined
in the statute. 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.