pre-Roe statutes were based on § 230.3 of the Model
Penal Code. 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. The statutes
did not place any express limits on the stage of pregnancy
at which an authorized abortion could be performed.
pre-Roe statutes were repealed in 1975, and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.
Va. Code Ann. § 18.1-62 et seq.
(Michie Supp. 1971).
Id. §§ 18.1-62,
18.1-62.1. The law imposed other conditions. A hospital
review board had to give its written consent Id. § 220.127.116.11(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. § 18.104.22.168(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).
Acts 18, ch. 14, § 1.
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.