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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the procedure was necessary “to preserve the life of the mother.”1  The substantive provisions of these statutes were repealed with the enactment of post-Roe legislation,2 and would not be revived by a decision overruling Roe v. Wade.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.3  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).4


1 Tenn. Code Ann. §§ 39-301, 39-302 (1956).

2 1973 Tenn. Pub. Acts 901 et seq., ch. 235, §§ 1,3.

3 Because 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.

4 See Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 10-17 (Tenn. 2000) (striking down various statutes regulating abortion).


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