Too late for Halloween, but just in time to frighten voters, the Guttmacher Institute (formerly associated with Planned Parenthood Federation of America) has released a report strongly implying that if Roe v. Wade were overruled, abortion would immediately become illegal in many, perhaps most, states, even in the absence of any new legislation banning the procedure.¹ The issuance of this report on the eve of a presidential election year is clearly calculated to scare the American electorate into believing that the election of a pro-life president and the appointment of anti-Roe justices would lead to a Supreme Court decision overturning Roe; and that such a decision, without any further action by the states, would result in abortion becoming generally illegal again in a majority of the states.² That belief, however, would be unwarranted. The Guttmacher Institute report is vague, misleading, and deceptive. Not surprisingly, it does not cite a single state abortion statute, making it difficult, if not impossible, for an interested reader to “fact check” the representations contained in it. This review is intended to provide that check.³

In the “Highlights” section of the report, the Guttmacher Institute claims that “19 states have laws that could be used to restrict the legal status of abortion,” and that only “7 states have laws that protect the right to choose abortion prior to viability or when necessary to protect the life or health of the woman.”⁴ The report, in turn, breaks down the “19 states” into three subcategories:

1) “4 states have laws that automatically ban abortion if Roe were to be overturned”

2) “11 states retain their unenforced, pre-Roe abortion bans”

3) “8 states have laws that express their intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.”⁵

 Trigger Statutes

Several observations need to be made about these subcategories. First, although Guttmacher correctly identifies the four states —Louisiana, Mississippi, North Dakota and South Dakota—that have “trigger” statutes, i.e., laws that would prohibit almost all abortions if Roe were overruled, the report fails to mention that the Mississippi statute would be unenforceable because the Mississippi Supreme Court has recognized a state constitutional right to abortion as broad as the federal right recognized in Roe v. Wade , as modified by Planned Parenthood v. Casey.⁶ Thus, even if Roe were overruled, the Mississippi Supreme Court’s Fordice decision would preclude enforcement of the Mississippi statute. The first subcategory of States with enforceable “trigger” statutes shrinks from four to three.

 Unrepealed Pre-Roe Statutes

The Guttmacher report next identifies eleven states that have not repealed their pre-Roe laws banning abortion. But it fails to note that the abortion laws in three of them—Massachusetts, Mississippi and New Mexico— would be unenforceable due to state supreme court decisions that have recognized a right to abortion (or abortion funding) on state constitutional grounds.⁷ Moreover, the law in a fourth state—Delaware—like the unenforceable New Mexico law—is based on the pre-Roe Model Penal Code, which, in the states where it was enacted, allowed abortion for a broad range of reasons, including the pregnant woman’s “mental health.”⁸ The experience under California’s (subsequently repealed) Therapeutic Abortion Act of 1967,⁹ also based on the Model Penal Code, demonstrates beyond cavil that a mental-health exception is an open door to abortion-on-demand.

The California Therapeutic Abortion Act permitted abortion in a wide variety of cases, including those where there was “a substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother.”¹⁰ Unlike vague mental-health exceptions found in other pre-Roe laws, however, the California Act defined the law’s exception in terms of the well-established standard for civil commitment, i.e., if, as a result of her pregnancy, the woman “would be dangerous to herself or to the person or property of others or is in need of supervision or restraint.”¹¹ Notwithstanding this (apparently) narrow definition, in 1970 more than 65,000 abortions were approved by hospital committees under the Act and almost 63,000 were performed, of which (for both categories) more than 98% were “for reasons of mental health.”¹² These astonishing figures perplexed the California Supreme Court, which commented:

Serious doubt must exist that such a considerable number of pregnant women could have been committed to a mental institution. Either pregnancy carries risks to mental health beyond those ever imagined, or legal writers and members of therapeutic abortion committees, two groups we must assume to be of at least common intelligence, have been forced to guess at the meaning of this provision and have reached radically different interpretations.¹³

There is another, and more likely, explanation. The physicians serving on the hospital committees routinely approved abortions for reasons of mental health because they were determined to approve the abortions, knew that their approvals were not subject to review by any court or agency, and understood that no other reason could plausibly be invoked to “justify” the abortion. Regardless of the explanation, the experience in California, which had the most narrowly drawn mental-health exception in any pre-Roe abortion law, leaves no doubt that such an exception cannot be contained and inevitably leads to abortion-on-demand.

The pre-Roe law in yet a fifth state identified in the Guttmacher report—Alabama—includes an undefined health exception,¹⁴ which, given the Supreme Court’s extremely broad reading of identical language in a pre-Roe decision interpreting the (subsequently repealed) District of Columbia statute,¹⁵ could be interpreted to allow abortion for virtually any reason.¹⁶ Thus, of the eleven states in Guttmacher’s second subcategory, no more than six—Arkansas, Arizona, Michigan, Oklahoma, West Virginia and Wisconsin—would have enforceable laws on the books prohibiting most abortions throughout pregnancy, and even that number may be too high, given state supreme court decisions in Arizona and West Virginia striking down state abortion funding restrictions on (state) equal protection grounds.¹⁷

Curiously, the Guttmacher Institute does not include Rhode Island or Texas in its report. Following Roe, Rhode Island repealed and reenacted its pre-Roe law prohibiting abortion except to save the life of the mother, adding a “conclusive presumption” that “human life commences at the instant of conception” and that said human life “is a person within the language and meaning of the Constitution of the United States.”¹⁸ The law was struck down,¹⁹ but has not been expressly repealed and would be enforceable if Roe were overruled. The Texas laws struck down in Roe v. Wade were never expressly repealed and, although the Fifth Circuit Court of Appeals has held that the pre-Roe laws prohibiting abortion were repealed by implication with the enactment of post-Roe laws regulating abortion,²⁰ that decision is not persuasive on its own terms,²¹ and, in any event, would not be binding upon a state court interpreting state law.²² Thus, a more accurate count, based upon the first two subcategories, suggests that no more than eleven states—Arizona, Arkansas, Louisiana, Michigan, North Dakota, Oklahoma, Rhode Island, South Dakota, Texas, West Virginia and Wisconsin—and perhaps as few as eight (if Arizona, Texas and West Virginia are excluded) would have enforceable laws on the books prohibiting most abortions throughout pregnancy if Roe v. Wade were to be overturned.

 Statutes Expressing an Intent to Restrict Legal Abortion

Finally, the Guttmacher Institute identifies eight States that, according to the report, have laws “that express their intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.” Three of them—Arkansas, Louisiana and North Dakota—are included in the first two subcategories and need not be discussed further here. The other five states are Illinois, Kansas, Kentucky, Missouri and Ohio. What the report does not acknowledge, however, is that none of these “express[ions]” of “intent” have any operative legal effect.²³ In each of these states, there would have to be a new political consensus in the state legislature to prohibit abortion. Whether such a consensus would exist at such time as Roe were overruled is, of course, entirely speculative. It is very misleading to suggest that these five states have laws on the books that would ban abortion should Roe be overruled. They do not.

 Statutes Protecting the Right to Choose Abortion

Perhaps even more misleading than its analysis of existing state law purporting to prohibit abortion (discussed above) is a statement in the report contending that only “7 states have laws that protect the right to choose abortion prior to viability or when necessary to protect the life or health of the woman.”²⁴ By this, the Guttmacher Institute appears to imply that abortion might not be legally available in the other forty-three states if Roe were overruled. That implication is deceptive, to say the least. Generally speaking, conduct is not criminal (under state law) unless it is defined as such in a statute of the state.²⁵ Thus, the failure of a State to enact a law affirmatively “protect[ing] the right to choose abortion” would not result in abortion becoming illegal if Roe were overruled. Rather, in the absence of a state law prohibiting abortion, abortion would remain legal. But, as explained above, the overwhelming majority of states do not have such laws on the books.

 Conclusion

The Guttmacher Institute report, “Abortion Policy in the Absence of Roe,” is a “Scary Movie” that leaves theater-goers in the dark as to the actual legal status of abortion. But when the lights come back on, the specters it conjures fade away. If Roe is eventually overruled, abortion will remain legal in the vast majority of states (at least thirty-nine) representing 80% of the population, according to current census figures.²⁶ In those states, abortion will continue to be legal unless and until a contemporary political consensus forms to make the practice illegal. The outcome of the 2016 presidential election, and the appointment of new justices, may determine whether Roe remains the law of the land, but, even if Roe is ultimately overruled, that decision will affect the legality of abortion in only a small minority of states.

NOTES:

1. 1. Guttmacher Institute, State Policies in Brief (As of January 1, 2016), “Abortion Policy in the Absence of Roe” (available on the Guttmacher Institute’s website, www.guttmacher.org.).
2. 2. The Center for Reproductive Rights has published similar reports, also during or shortly before a presidential election year. See “What if Roe Fell?” Center for Reproductive Rights (September 2004, June 2007) (available on the Center’s website, www.reproductiverights.org).
3. 3. A thorough analysis of the issue, complete with citations to the relevant statutes, may be found in the author’s article, The Legal Status of Abortion in the States If Roe Wade is Overruled, Issues in Law & Medicine, Vol. 27, No. 3, 181-228 (Spring 2012). Since that article was published, Colorado repealed its pre-Roe abortion law, which was based upon the Model Penal Code provision on abortion, discussed below in the text.
4. 4. “Abortion Policy in the Absence of Roe,” n. 1, supra.
5. 5. Id. The total number of these three subcategories is twenty-three, not nineteen, because four States appear in more than one subcategory.
6. 6. Pro-Choice Mississippi Fordice, 716 So.2d 645, 650-54 (Miss. 1998).
7. 7. Moe Secretary of Administration & Finance, 417 N.E.2d 387, 397-99 (Mass. 1981); Planned Parenthood League of Massachusetts v. Attorney General, 677 N.E.2d 101. 103-04 (Mass. 1997); Fordice, supra, note 6; New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 850-58 (N.M. 1998). Whether, apart from these decisions, either the Massachusetts law or the New Mexico law would actually prevent most abortions is questionable. In a series of cases going back decades before Roe was decided, the Massachusetts Supreme Judicial Court interpreted the Commonwealth’s abortion statute to allow abortions for any reason relating to the pregnant woman’s physical or mental health. See, e.g., Kudish v. Board of Registration in Medicine, 248 N.E.2d 264, 266 (Mass. 1969); Commonwealth v. Brunelle, 171 N.E.2d 850, 851-52 (Mass. 1961); Commonwealth v. Wheeler, 53 N.E.2d 4, 5 (Mass. 1944). The New Mexico statute would allow abortions for a broad range of reasons, including “grave impairment” of the woman’s “physical or mental health.” N.M. Stat. Ann. § 30-5-1(C)(1) (2004). For the reasons explained in more detail later in this article, it is doubtful that an abortion law allowing abortions for reasons of the woman’s mental health would effectively prohibit any abortions.
8. 8. The Delaware law would allow abortions when, among other reasons, continuation of the pregnancy would involve “substantial risk of permanent injury to the physical or mental health of the mother.” Code Ann. tit. 11, § 1790(a)(4).
9. 9. Health & Safety Code, § 25950 et seq. (West Supp. 1971).
10. 10. Id. § 25951.
11. 11. Id. § 25954.
12.  12. People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (citing official abortion reporting statistics).
13. 13. Id.
14. 14. Code, § 13A-13-7 (LexisNexis 2005).
15. 15. C. Code Ann. § 22-201 (1967), renumbered as § 22-101 in 1998 and later repealed, allowing abortion if the procedure was “necessary for the preservation of the mother’s life or health . . . .”
16. 16. See United States v. Vuitch, 402 U.S. 62, 72 (1971) (interpreting “health” as “the state of being . . . sound in body [or] mind,” which “includes psychological as well as physical well-being”) (citation and internal quotation marks omitted).
17. 17. See Simat Corp. Arizona Health Care Cost Containment System, 56 P.3d 28 (Ariz. 2002); Women’s Health Center of West Virginia, Inc. v. Panepinto, 446 S.E.2d 658 (W.Va. 1993). Neither opinion decided whether the state constitution confers a right to abortion that is separate from, and independent of, the right to abortion recognized in Roe v. Wade. Simat, 56 P.3d at 34; Panepinto, 446 S.E.2d at 664, 667.
18. 18. 1973 R.I Pub. Laws 67-70, ch. 15, §§ 1, 2, codified as I. Gen. Laws § 11-3-1.
19. 19. Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973), aff’d, 482 F.2d 156 (1st Cir. 1973).
20. 20. McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004).
21. 21. Repeal by implication is disfavored and seldom applied. See generally David M. Smolin, The Status of Existing Abortion Prohibitions in a Legal World without Roe: Applying the Doctrine of Implied Repeal to Abortion, XI Louis U. Pub. L. Rev. 385 (1992). The superficiality of the Fifth Circuit’s repeal-by-implication analysis is evident when one notes that one of the three “laws” the court cited in its opinion supporting its conclusion that the pre-Roe laws had been repealed by implication was an administrative regulation restricting public funding of abortion.  See McCorvey, 385 F.3d at 849.  Needless to say, a regulation adopted by a state agency cannot repeal by implication a statute enacted by the state legislature.  To date, no state court has held that post-Roe statutes regulating abortion repealed by implication pre-Roe statutes prohibiting abortion, and two state courts have held that the enactment of the former did not result in the repeal by implication of the latter.  See People v. Higuera, 625 N.W.2d 444 (Mich. Ct. App. 2001); State v. Black, 526 N.W.2d 132, 134-35 (Wis. 1994).
22. 22. See,g., Beavers v. Northrop Worldwide Aircraft Services, Inc., 821 S.W.2d 669, 674 (Tex. App. – Amarillo 1991, writ denied) (“in matters of state law, state courts are not bound by decisions of federal courts of appeal”).
23. 23. For example, the preamble to the Illinois Abortion Act of 1975 states that if the decisions of the United States Supreme Court recognizing a right to abortion are “ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.” 720 Comp. Stat. Ann. 510/1 (West 2003). In the absence of new legislation criminalizing abortion (the pre-Roe statute having been expressly repealed), however, the preamble to the 1975 Act would not, by its own terms, make abortion illegal.  It contains no operative provisions and authorizes no punishment.  Conduct is not criminal in Illinois unless a statute defines the particular conduct as criminal.  See 720 Ill. Comp. Stat. Ann. 5/1-3 (West 2002).  Moreover, one General Assembly cannot bind another to enact legislation. See Effect on Illinois if Roe v. Wade Is Modified or Overruled, Illinois General Assembly Legislative Research Unit (Feb. 9, 1989).  Much the same analysis applies to similar language that appears in Kentucky and Missouri law.  See Ky. Rev. Stat. Ann. § 311.710(5) (LexisNexis 2007); Mo. Ann. Stat. § 188.010 (West 2004).  As in Illinois, abortion would not be illegal in either State in the absence of new legislation.  And a purported legislative “express[ion]” of “intent” to prohibit abortion at some future date in Kansas and Ohio (for which the Guttmacher Institute report provides no citations) does not constitute a “trigger” statute and would not ban abortion in either State.
24. 24. According to the report, those seven States are California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.
25. 25. A minority of States recognize common law crimes, but whether abortion would be treated as a common law crime in any of those States, especially where abortion is regulated but not prohibited, is doubtful. Regardless, the weight of authority indicates that abortion was not recognized as a common law crime in the United States prior to “quickening.” See, g., Abrams v. Foshee, 3 Iowa 273, 278-80 (1856), Smith v. State, 33 Me. 48, 55, (1851), Commonwealth v. Parker, 50 Mass. (9 Met.) 263, 264-68 (1845), State v. Cooper, 22 N.J.L. 52, 53-58 (1849). “Quickening” is the stage of pregnancy when a pregnant woman first detects fetal movement, usually between the sixteenth and eighteenth weeks of pregnancy, which is long after most abortions are performed.  Thus, even in the very few States that, theoretically, might recognize the common law crime of abortion if Roe is overruled, recognition of that crime would not affect the legality of more than 90% of all abortions performed in those States.
26. 26. And, of course, in those other eleven States, one could reasonably anticipate political efforts to repeal those laws or legal efforts to overturn them on state constitutional grounds.

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Paul Linton, a regular contributor to the Human Life Review, is an attorney in private practice who has been professionally engaged in the pro-life movement for more than twenty-five years.  The author of many law review articles and articles in journals of opinion, he has published the first and, to date, only comprehensive analysis of abortion under state constitutions, ABORTION UNDER STATE CONSTITUTIONS: A STATE-BY-STATE ANALYSIS (Carolina Academic Press) (2d ed. 2012). He received his undergraduate (B.A. Honors) and law (J.D.) degrees from Loyola University of Chicago.