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2 Am. J.L. & Med. 101 (1976-1977)
State Legislation on Abortion after Roe v. Wade: Selected Constitutional Issues

handle is hein.journals/amlmed2 and id is 115 raw text is: State Legislation on Abortion after Roe v. Wade: Selected Constitutional Issues M. David Bryant, Jr., J.D. t Over the past three years, a great volume of legislation on abortion has been produced by state legislatures in an attempt to fill the vacuum created by the United States Supreme Court's 1973 decision in Roe v. Wade. This Article examines several of the most common types of statutory provisions and assesses their constitutionality in light of Roe v. Wade and other applicable federal and state legal standards. I. ROE V. WADE AND THE SECOND GROWTH OF STATE LEGISLATION The United States Supreme Court's 1973 decision in Roe v. Wade' spelled doom for some portions of the abortion statutes of all fifty states.2 In this now famous case, Justice Blackmun, writing for the Court, stated that the right of a woman, in consultation with her physician, to terminate her pregnancy is a privacy right guaranteed by the Due Process Clause of the Fourteenth Amend- ment to the United States Constitution. More precisely, the Court held that a state may not override a woman's decision to undergo an abortion on the basis of the state's belief that a fetus is a living being; the Court further held that an unborn child is not a t B.A., North Texas State University; J.D., Harvard University. Mr. Bryant is a member of the Texas Bar and is Law Clerk to Judge Homer Thornberry, United States Court of Appeals for the Fifth Circuit. 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973). 2 Thirty statutes were described by the Court as similar to the Texas statute invalidated in Roe, 410 U.S. at 118 & n.2, 93 S. Ct. at 709 & n.2, 35 L.Ed.2d at 157 & n.2, which made it a crime to perform any abortion other than one procured or attempted by medical advice for the purpose of saving the mother. V. ANN. TEX. P.C. §§ 1191, 1194 (1925) (repealed in 1973). Another fourteen statutes were modelled, like the Georgia statute at issue in Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 789, 35 L.Ed.2d 201 (1973), on the American Law Institute Model Penal Code. See 410 U.S. at 140 n.37; 93 S. Ct. at 720 n.37; 35 L.Ed.2d at 169-70 n.37. Even those states which had repealed criminal penalties for abortion during early pregnancy retained some provisions which became impermissible under Roe. See, e.g., ALAS. STAT. § 11.15.060 (1975); N.Y. PEN. LAW § 125.05 (Supp. 1976); WASH. REv. CODE ANN. §§ 9.02.060-.070 (Supp. 1976).

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