pre-Roe statutes prohibited performance of an abortion
unless the procedure was “necessary to preserve the life of
the mother, or shall have been advised by two physicians to
be necessary for such purpose.” Pursuant
to Roe, these statutes were declared unconstitutional
in an unreported judgment of a three-judge federal district
court, and were
later repealed. 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
Neb. Rev. Stat. §§ 28-404, 28-405 (1964).
Doe v. Exon, Civil No. 71-L-199 (D. Neb. Feb. 21,
Laws 801, 806, L.B. 286, § 24.
of its undefined health exception, Nebraska’s post-viability
statute, see Neb. Rev. Stat. Ann. § 28-329 (Michie
2003), 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.