pre-Roe statutes prohibited performance of an abortion
on a pregnant woman unless the procedure was “necessary to
preserve her life,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). Pursuant
to Roe, these statutes were declared unconstitutional
by the Oklahoma Court of Criminal Appeals in Jobe v. State, and by
a three-judge federal district court in Henrie v. Derryberry. Enforcement
of the statutes was not enjoined.
pre-Roe statutes have not been expressly repealed, and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assuming that they have not been repealed by implication with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
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.
Id. § 862. No
prosecutions were reported under this statute.
481 (Okla. 1973).
719 (N.D. Okla. 1973)
Okla. Stat. Ann. tit. 21, §§ 861, 862
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.