pre-Roe statutes prohibited performance of an abortion
unless the procedure was necessary “to preserve the life of
the mother.” The
substantive provisions of these statutes were repealed with
the enactment of post-Roe legislation, and
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. Regardless
of Roe, any attempt to prohibit abortion (at least before
viability) in Tennessee would be barred by a decision of the
Tennessee Supreme Court recognizing a fundamental right to
abortion based on state constitutional grounds (privacy).
Tenn. Code Ann. §§ 39-301, 39-302 (1956).
Pub. Acts 901 et seq., ch. 235, §§ 1,3.
of its undefined health exception, Tennessee’s post-viability
statute, see Tenn.
Code Ann. § 39-15-201(c)(3) (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.
Planned Parenthood of Middle Tennessee v. Sundquist,
38 S.W.3d 1, 10-17 (Tenn. 2000) (striking down various
statutes regulating abortion).