Request By:
Hon. Robert A. Bowman, Staff Attorney
Legislative Research Commission
State Capitol
Frankfort, KY 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: H. Regina Cullen, Assistant Attorney General
You have requested the opinion of this office as to the definitions of therapeutic and non-therapeutic abortions in light of the U.S. Supreme Court decision in
Beal v. Doe, 45 U.S.L.W. 4781 (U.S. June 20, 1977).
Kentucky, itself has no statutes or administrative regulations defining therapeutic or non-therapeutic abortions, thus we must look elsewhere for pursuasive authority on the subject.
Traditionally, thereapeutic abortion has been defined as "an abortion induced when pregnancy constitutes a threat to the mother's life" Webster's Third New International Dictionary, 2372 (1966). What constitutes a threat to a mother's life has, in the recent past, been broadly defined by state statutes and regulations which have been accepted by the United States Supreme Court.
For example, in
Beal v. Doe, supra, the Supreme Court expanded on the Pennsylvania regulation in question which defined therapeutic abortions as "those abortions that are certified by physicians as medically necessary. " Id. at 4781. Justice Powell, writing for the majority, interpreted "medically necessary" in this manner:
In
Doe v. Bolton, 410 U.S. 179, 197 (1973), this Court indicated that "[w]hether 'an abortion is necessary' is a professional judgment that may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevent to the well being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment."
Beal v. Doe, supra, at 4781 and 4782, n.3.
In a companion case to Beal v. Doe, Id., the U.S. Supreme Court reviewed another state regulation that defined therapeutic abortions.
Maher v. Roe 45 U.S.L.W. 4787 (U.S. June 20, 1977). In this case a Connecticut regulation construed a therapeutic abortion to be one that, "[i]n the opinion of the attending physician the abortion is medically necessary. The term 'medically necessary' includes psychiatric necessity." Connecticut Welfare Department, Public Assistance Program Manual, Volume 3, Chapter III, 9275. The Supreme Court accepted this definition of therapeutic abortion without question.
A similar definition of therapeutic abortion was reviewed by the Sixth Circuit 515 F.2d 279 (6th Cir. 1975). In this situation an Ohio statute characterized therapeutic abortion as an abortion "necessary to preserve the life or physical or mental health of the pregnant woman. " Baldwin's Ohio Rev. Code § 5105.55(c). The Court of Appeals for the Sixth Circuit upheld the broad definition contained in the statute without criticism.
These opinions of the United States Supreme Court and the Sixth Circuit Court of Appeals thus serve to pursuade and buttress our opinion that a therapeutic abortion is one which an attending physician certifies is medically necessary to preserve the physical or mental health of a pregnant woman. A non-therapeutic abortion is one which does not fall within the parameters of our definition of a therapeutic abortion.