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The pre-Roe statute prohibited the performance of an abortion unless the procedure was “necessary to save the life of the mother.”1  In Babbitz v. McCann,2 a three-judge federal district court declared the statute unconstitutional, insofar as it prohibited abortions before quickening (16-18 weeks gestation).  The same court thereafter permanently enjoined enforcement of the statute.3  That injunction, however, was subsequently vacated by the Supreme Court.4  The pre-Roe statute, which has not been repealed,5 would be enforceable if Roe v. Wade were overruled.6


1 Wis. Stat. Ann. § 940.04 (1969).  Under subsection (3), “[a]ny pregnant woman who intentionally destroy[ed] the life of her unborn child or who consents to such destruction by another” was guilty of a misdemeanor.  No prosecutions were reported under this subsection.

2 310 F.Supp. 293 (E.D. Wis. 1970), appeal dismissed, 400 U.S.1 (1970).

3 See Babbitz v. McCann, 320 F.Supp. 219 (E.D. Wis. 1970).

4 See McCann v. Babbitz, 402 U.S. 903 (1971).

5 Wis. Stat. Ann. § 940.04 (West 1996 & Supp. 2004).  The Wisconsin Supreme Court has held that § 940.04 has not been repealed by implication with enactment of post-Roe statutes regulating abortion.  See State v. Black, 526 N.W.2d 132, 134-35 (Wis. 1994).

6 Apart from the pre-Roe statute, it is unlikely that Wisconsin’s post-viability statute, see Wis. Stat. Ann. § 940.15 (West Supp. 2004), would effectively prohibit post-viability abortions because it allows such abortions 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.