All we have before us on these appeals is the question of the propriety of the preliminary injunction which was granted, plus the question of whether there was justification for the appointment of a guardian.
I agree that the strong presumption of constitutionality which supports the new subdivision 3 of section 125.05 of the Penal Law was sufficient to defeat the motion for a preliminary injunction and that it was improvidently granted. However, I disagree that the guardian’s work is done and that he should now be discharged.
It is true that, although no motion for summary judgment was made by either side at the Special Term, it was conceded on the *332argument before us that there were no issues of fact to try. However, it seems to me that this is so only with respect to the immediate factual basis for the lawsuit itself. It is not so with respect to the factual foundation which was developed before the Legislature and relied upon by it to support the amendments in the abortion law which it finally enacted. This basic issue remains open.
We all have our personal beliefs and a philosophy of life, but a Judge must apply the law as he finds it, whether it supports his beliefs or not. Viewed from this posture, in the light of settled constitutional law, I must find the extreme position of the plaintiff to be legally untenable. His contention is that the new legislation is void and unconstitutional on its face, because he deems it beyond the Legislature’s power to adopt any regulations in this field short of absolute prohibition (except, of course, to preserve the mother’s life), regardless of the serious problems which have been graphically delineated in the majority opinion. He has overlooked the very real, all important and challenging question which does exist, viz., whether there was a rational basis for the legislative enactment which was adopted by the lawmakers.
The majority concedes this question to be implicitly involved in this case, but concludes that there has been no showing made which would warrant inquiring into and examining that phase of the matter.
Since at this juncture there has been no trial, or even a motion for summary judgment, there has been no opportunity to make such a presentation, and a final judgment, now, precludes there ever being one. While giving full recognition to the heavy burden resting on anyone who challenges a law on constitutional grounds, it does no violence to that principle, in my opinion, to require the State, when it takes away a life by law, to take the initiative to justify the act, although the ultimate burden of proof may remain unaltered.
Putting aside metaphysical concepts of soul infusion and the semantic question as to when a fetus becomes a human being, unquestionably it is an inchoate human being well along in its development at six months, sufficient, I think, to make out a prima facie case for continuing its life and sufficient to rebut the presumption that there was a rational basis for legislation which would take it away. In other words, the gravity of what is being done puts an end to the presumption and we are entitled to hear and evaluate the merits of the State’s position.
*333While it is customary to take a plaintiff at his word, in a case of such transcendent importance as this one is to the people of the entire State, and where the plaintiff is merely their representative in a class action, I believe that in good conscience we should not accept the plaintiff’s concession that there are no triable issues.
The Froessel Commission’s report, which appears to be the source of the 24-week viability test adopted by the Legislature as the outside limit for elective abortion, certainly furnished a rational basis for not going beyond that point, but it is by no means self-evident to me that there is a rational basis for waiting that long. Situations readily come to mind which might justify waiting beyond the first trimester to terminate a pregnancy, e.g., a late contraction of German measles by the mother causing a crippling malformation or mental defect in the fetus or an amniocentesis test for mongolism which proves positive after 18 weeks, etc., but I have seen no rational basis advanced or even alluded to for waiting six months for a purely elective abortion. Certainly it is nowhere recommended in the commission’s report.
I think a court must reject both extreme views which have been advanced. On the one hand, it cannot accept the concept that a woman, with or without State approval, may not under any circumstance terminate a pregnancy immediately after fertilization of an ovum because the chromosomal blueprint is present in that individual embryo. On the other hand, neither can I accept the reasoning that a 24-week fetus, which is in fact an almost fully formed baby with all its limbs and all its organs, has no standing to invoke the intervention of the court to save its life even if there be no compelling, rational reason to abort it.
That the founding fathers may not have been thinking specifically of infants en ventre sa mere when they adopted the Fifth Amendment to the Federal Constitution or that their successors may not have been mindful of that when they adopted the Fourteenth Amendment does not preclude our doing so; and in fact this was done with respect to a 32-week fetus in Raleigh-Fitkin-Paul Morgan Mem. Hosp. v. Anderson (42 N. J. 421, cert. den. sub nom. Anderson v. Raleigh Fitkin-Paul Morgan Mem. Hosp., 377 U. S. 985). I agree with that decision and with a similar ruling made with respect to late pregnancies in Hoener v. Bertinato (67 N. J. Super. 517).
The line of Federal cases which are almost equally divided on the constitutional right of a woman to determine whether to continue a pregnancy in its early stages in spite of State laws *334which purported to deny her that right is of limited usefulness to us here, where New York has accorded the right, and the challenge is whether it is unconstitutional to recognize it, rather than unconstitutional to take it away.
In sum, I would allow this case to proceed to trial, to ascertain whether in the light of current scientific and medical knowledge, and the sociological and economic problems with which the Legislature had to deal, there was a rationally sustainable basis for the course it took.
Rabin, P. J., Latham and Shapiro, JJ., concur with Christ, J.; Gulotta, J., dissents in part, in an opinion.
Order of the Supreme Court, Queens County, entered January 7, 1972, reversed, on the law, without costs; plaintiff’s motion for a preliminary injunction denied; cross motion of defendant New York City Health & Hospitals Corporation to vacate an order of the same court, entered December 3,1971, granted; and case remanded to the Special Term for entry of a judgment in favor of defendants declaring the rights of the parties.