Opinion of the Court
criminalized abortion at all stages, all but one did so by 1910. See ibid.
The trend in the Territories that would become the last 13 States was similar: All of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico). See Appendix B, infra; see also Casey, 505 U. S., at 952 (Rehnquist, C. J., concurring in judgment in part and dissenting in part); Dellapenna 317–319. By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother.” 410 U. S., at 139.[1]
This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother. See id., at 118, and n. 2 (listing States). And though Roe discerned a “trend toward liberalization” in about “one-third of the States,” those States still criminalized some abortions and regulated them more stringently than Roe would allow. Id., at 140, and n. 37; Tribe 2. In short, the
- ↑ The statutes of three States (Massachusetts, New Jersey, and Pennsylvania) prohibited abortions performed “unlawfully” or “without lawful justification.” Roe, 410 U. S., at 139 (internal quotation marks omitted). In Massachusetts, case law held that abortion was allowed when, according to the judgment of physicians in the relevant community, the procedure was necessary to preserve the woman’s life or her physical or emotional health. Commonwealth v. Wheeler, 315 Mass. 394, 395, 53 N. E. 2d 4, 5 (1944). In the other two States, however, there is no clear support in case law for the proposition that abortion was lawful where the mother’s life was not at risk. See State v. Brandenberg, 137 N. J. L. 124, 58 A. 2d 709 (1948); Commonwealth v. Trombetta, 131 Pa. Super. 487, 200 A. 107 (1938).
Statutes in the two remaining jurisdictions (the District of Columbia and Alabama) permitted “abortion to preserve the mother’s health.” Roe, 410 U. S., at 139. Case law in those jurisdictions does not clarify the breadth of these exceptions.
