The pre-Roe statute
prohibited performance of an abortion on a pregnant woman “maliciously
or without lawful justification.” This
statute was declared unconstitutional by a three-judge federal
court in 1972, and
was repealed in 1978. The
pre-Roe statute would not be revived by a decision overruling Roe
v. Wade. Abortions could be performed for any reason at
any stage of pregnancy. Regardless of Roe, any attempt
to prohibit abortion (at least before viability) in New Jersey
would be barred by the New Jersey Supreme Court’s decisions recognizing
a fundamental right to abortion on state constitutional grounds
N.J. Stat. Ann. § 2A:87-1 (West 1969). There
was little case law interpreting this language, though, at
a minimum, it appears that the statute would have allowed
those abortions necessary to save the life of the mother. See
State v. Moretti, 244 A.2d 499, 504 (N.J. 1968).
Y.W.C.A. of Princeton, N.J. v.
Kugler, 342 F.Supp. 1048 (D. N.J. 1972), vacated
and remanded, 475 F.2d 1398 (3d Cir. 1973), judgment
reinstated, Civil No. 264-70 (D. N.J. July 24, 1973), aff’d
mem. op., 493 F.2d 1402 (3d Cir. 1974). Prior to Roe,
the New Jersey Supreme Court rejected a vagueness challenge
to the statute. See State v. Moretti, supra,
Laws 482, 687-88, ch. 95, § 2C:98-2.
Right to Choose v. Byrne, 450 A.2d 925, 934 (N.J. 1982)
(“The right to choose whether to have an abortion . . .is
a fundamental right of all pregnant women”) (striking down
restrictions on public funding of abortion); Planned
Parenthood of Central New Jersey v. Farmer, 762 A.2d
620 (N.J. 2000) (invalidating parental notice statute).