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The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was “necessary to preserve her life,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2  Pursuant to Roe, these statutes were declared unconstitutional by the Oklahoma Court of Criminal Appeals in Jobe v. State,3 and by a three-judge federal district court in Henrie v. Derryberry.4  Enforcement of the statutes was not enjoined.

The pre-Roe statutes have not been expressly repealed,5 and would be enforceable if Roe v. Wade were overruled, assuming that they have not been repealed by implication with the enactment of comprehensive post-Roe legislation regulating abortion.6


1 Okla. Stat. Ann. tit. 21, § 861 (West 1971).  When an abortion was performed upon a woman “pregnant with a quick child” and the death of either the mother or the child resulted, the offense was manslaughter.  Id. § 714.

2 Id. § 862.  No prosecutions were reported under this statute.

3 509 P.2d 481 (Okla. 1973).

4 358 F.Supp. 719 (N.D. Okla. 1973)

5 Okla. Stat. Ann. tit. 21, §§ 861, 862 (West 2002).

6 Apart from the pre-Roe statutes, it is unlikely that Oklahoma’s post-viability statute, see Okla. Stat. Ann. tit. 63, § 1-732 (West 2004), 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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May be reprinted without permission but with attribution to the Life Legal Defense Fund.