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Virginia

The pre-Roe statutes were based on § 230.3 of the Model Penal Code.1  An abortion could be performed only by a licensed physician in an accredited hospital when (1) continuation of the pregnancy was likely to result in the death of the woman or “substantially impair” her mental or physical health, (2) there was a “substantial medical likelihood” that “the child [would] be born with an irremediable and incapacitating mental or physical defect,” or (3) the pregnancy resulted from incest or promptly reported rape.2  The statutes did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed. 

 

The pre-Roe statutes were repealed in 1975,3 and would not be revived by a decision overruling Roe v. Wade.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.4

 



1 Va. Code Ann. § 18.1-62 et seq. (Michie Supp. 1971).

2 Id. §§ 18.1-62, 18.1-62.1.  The law imposed other conditions.  A hospital review board had to give its written consent  Id. § 18.1.62.1(d).  If the abortion was being sought because of the child’s mental or physical defect, the written consent of the woman’s husband was necessary.  Id. § 18.1.62.1(e).  In the case of a minor, the written consent of her parent or guardian was required, or, if the woman was married, the written consent of her husband.  Id.    As the experience in California demonstrated, mental health exceptions were widely abused.   See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).

3 1975 Va. Acts 18, ch. 14, § 1.

4 It is unlikely that Virginia’s post-viability statute, see Va. Code Ann. § 18.2-74 (Michie 2004), would effectively prohibit post-viability abortions because it allows abortions for mental, as well as physical, health reasons.  As the experience in California demonstrated, mental health exceptions were widely abused.  See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health). 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.