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The 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.”1  Pursuant to Roe, these statutes were declared unconstitutional in an unreported judgment of a three-judge federal district court,2 and were later repealed.3  The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade.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.4


1 Neb. Rev. Stat. §§ 28-404, 28-405 (1964).

2 See Doe v. Exon, Civil No. 71-L-199 (D. Neb. Feb. 21, 1973).

3 1973 Neb. Laws 801, 806, L.B. 286, § 24.

4 Because 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.


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