had two sets of pre-Roe abortion statutes. Older statutes
prohibited performance of an abortion upon a woman unless the
procedure was “necessary to preserve her life or that of [her]
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). In
November 1970, however, the voters approved by referendum a
new abortion act. This
act, which by its terms did not repeal the older statutes, allowed
abortion on demand of a woman “not quick with child and not
more than four lunar months after conception.” Following Roe
v. Wade, the attorney general stated that the hospitalization
requirement in the statutes adopted in November 1970 was unenforceable
during the first trimester of pregnancy, and that the residency
requirement was also unconstitutional. The
parental consent requirement was declared unconstitutional
on federal constitutional grounds by the Washington Supreme
Court in State v. Koome. Washington
repealed all of its pre-Roe statutes in 1991, and the
overruling of Roe v. Wade would not revive those statutes. Abortions
could be performed for any reason before viability, and for
virtually any reason after viability.
Wash. Rev. Code Ann.§ 9.02.010 (West.
Id. § 9.02.020. No
prosecutions were reported under this statute.
Id. §§ 9.02.060
Id. §§ 9.02.060,
0.02.070. The statutes adopted by referendum imposed other
conditions. An abortion could be performed only by a licensed
physician in a licensed hospital or approved medical facility. If
the abortion was being sought by a married woman, the consent
of her husband was necessary and, if she was an unmarried
minor, the consent of her legal guardian. Id. § 9.020.070. The
law also required physical domicile in the State for ninety
days prior to the performance of the abortion. Id.
Wash. Op. Att’y Gen. 7, 11-14.
260 (Wash. 1975).
Laws ch. 1, § 9, Initiative Measure No. 120, approved Nov.
5, 1991. The Reproductive Privacy Act declares that “every
individual possesses a fundamental right of privacy with
respect to personal reproductive decisions,” including
abortions. Id. § 1, codified as Wash. Rev. Code Ann. § 9.02.100 (West 2003). Consistent with
that declaration, the Act provides further that “The state
may not deny or interfere with a woman’s right to choose
to have an abortion prior to viability of the fetus, or
to protect her life or health.” Id. § 2, codified
as Wash. Rev. Code Ann. § 9.02.110 (West
2003). No such statement of public policy is required
to make abortion legal in any State. In the absence of
specific legislation making abortion criminal (either pre-
or post-Roe), abortion would remain legal even if Roe
v. Wade were overruled.
of its undefined health exception, Washington’s post-viability
statutes, see Wash.
Rev. Code Ann. §§ 9.02.110, 9.02.120 (West 2003),
would not effectively prohibit post-viability abortions.