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The principal pre-Roe statutes prohibited performance of an abortion upon a pregnant woman unless the procedure was “necessary to preserve her life, or that of the child with which she [was] pregnant,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2  Pursuant to Roe, § 617.18 was declared unconstitutional in a pair of decisions by the Minnesota

Supreme Court.3  Both § 617.18 and § 617.19 were repealed in 1974,4 and neither would be revived by a decision overruling Roe v. Wade.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.5  Regardless of Roe, any attempt to prohibit abortion (at least before viability) in Minnesota, even if Roe were overruled, would be barred by a Minnesota Supreme Court decision recognizing a fundamental right to abortion on state constitutional grounds (privacy).6


1 Minn. Stat. Ann. § 617.18 (West 1971).

2 Minn. Stat. Ann. § 617.19 (West 1971).  No prosecutions were reported under this statute.

3 See State v. Hultgren, 204 N.W.2d 197 (Minn. 1973); State v. Hodgson, 204 N.W.2d 199 (Minn. 1973).  Prior to Roe, a three-judge federal district court dismissed a challenge to the principal pre-Roe statutes for want of a justiciable “case or controversy.”  Doe v. Randall, 314 F.Supp. 32, 34 (D. Minn. 1970).

4 1974 Minn. Laws 265, 268, ch. 177, § 7.

5 Because of its undefined health exception, Minnesota’s post-viability statute, see Minn. Stat. Ann. § 145.412 subd. 3 (West 1998), 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.

6 See Women of the State of Minnesota v. Gomez, 542 N.W.2d 17, 27 (Minn. 1995) (“the right of privacy under the Minnesota Constitution encompasses a woman’s right to decide to terminate her pregnancy”) (striking down restrictions on public funding of abortion).


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May be reprinted without permission but with attribution to the Life Legal Defense Fund.