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 The principal pre-Roe statute prohibited all abortions.1  Although § 14:87 did not on its face permit any exceptions, given the requirement of a specific criminal intent,2 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.3  Pursuant to Roe, § 14:87 and § 37:1285(6) were declared unconstitutional in a pair of three-judge federal district court decisions.4  Following the Supreme Court’s decision in Webster v. Reproductive Health Services,5 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  A three-judge federal district court convened to hear the case held that § 14:87 had been repealed by implication with the enactment of comprehensive post-Roe legislation regulating abortion.6  The legislature thereafter enacted a new § 14:87 prohibiting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act of rape or incest. 7   This statute was also declared unconstitutional. 8 Recently, the Louisiana Legislature repealed and reenacted § 14:87, deleting the exceptions for rape and incest, retaining the life-of-the mother exception and adding a very narrow physical health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). 9  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 abortion. 10  Section 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. 11


1 La. Rev. Stat. Ann. § 14:87 (West 1964).

2 See State v. Sharp, 182 So.2d 517, 518 (La. 1966).

3 The state 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.

4 See 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).

5 492 U.S. 490 (1989).

6 See Weeks v. Connick, 733 F.Supp. 1036 (E.D. La. 1990).

7 1991 La. Acts, No. 26, codified as La Rev. Stat. Ann. § 14:87 (West 2004).

8 See 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).

9 See 2006 La. Acts Pub. Act 467, § 2 (signed June 17, 2006).

10 Id. § 1 (adding § 1299.30 to the Louisiana Revised Statutes Annotated).

11 Apart 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.


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