Abortion Ban

NEAR-TOTAL

Delaware has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.

The unenforceable ban provides that a woman may not obtain an abortion unless it is authorized by a hospital abortion review authority that must find that:  (1) the pregnancy resulted from incest, or rape or unlawful sexual intercourse committed as a result of force or bodily harm and the Attorney General certifies that there is probable cause to believe that the alleged rape or unlawful sexual intercourse occurred; (2) continuation of the pregnancy is likely to result in the death of the woman or poses a substantial risk of permanent injury to her physical or mental health; or (3) there is a substantial risk that the woman will deliver a child with grave and permanent physical deformity or mental retardation.  In each of these circumstances, except rape or unlawful sexual intercourse, two physicians must certify to the review authority that one of these conditions exists. In no event does the ban permit abortion if more than 20 weeks of gestation have passed.

No person may give advice or information for the purpose of causing an unauthorized abortion.  A person who causes an unauthorized abortion is guilty of a felony and shall be fined up to $5000 and imprisoned for two to ten years.  A woman who causes or submits to her own unauthorized abortion is guilty of a misdemeanor.  A person who manufactures or sells any instrument, drug, or substance for the purpose of causing an unauthorized abortion is guilty of a misdemeanor.

Del. Code Ann. tit. 11, §§ 651 (Enacted 1989), 652 (Enacted 1989), 653 (Enacted 1989); Del. Code Ann. tit. 24, §§ 1766 (Original Statute Enacted 1895; Relevant Provision Added 1970; Last Amended 2005), 1790 (Enacted 1969; Last Amended 1995), 1792 (Enacted 1969; Last Amended 1995).

The Delaware Attorney General issued an opinion stating that Delaware abortion laws are invalid to the extent that they conflict with Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), and issued a Statement of Policy declaring that violations of these provisions will not be prosecuted.  Del. Op. Att'y Gen. No.73-030 (Apr. 12, 1973); Statement of Policy, Attorney General of Delaware (Mar. 24, 1977).  See Delaware Women's Health Org. v. Wier, 441 F. Supp. 497, 499 n.9 (D. Del. 1977) (challenge to criminal abortion law dismissed because plaintiffs not exposed to a genuine threat of enforcement).