(dissenting).
The Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), were premised on the concept that a decision to abort would be made in the traditional doctor-patient setting. There was not to be abortion on demand;1 rather, the abortion decision was to be made only after the doctor and the patient had carefully reviewed the physical, emotional, psychological and familial factors relevant to this extremely important and stressful decision.2
The realities are altogether different. It is estimated that more than half of the nearly one million abortions performed in 1975 took place in non-hospital clinics,3 under circumstances where the doctor performing the operation often sees the patient once and then only for a brief period.4 The result is that we do have abortion on demand, and the decisions of the -doctor and patient to abort are not being made with the same degree of care and thoughtfulness that accompanies other surgical procedures.
In light of these circumstances, I cannot concur in the decision of this Court to declare unconstitutional § 145.415, subds. 1 and 2, nor can I concur in the decision insofar as it denies the state the power to enact and enforce reasonable rules and regulations with respect to first trimester abortions.
In my judgment, we can, consistent with the decisions of the Supreme Court, and in keeping with our duty to interpret legislation, if possible, in a manner which favors its survival,5 declare unconstitutional only that portion of Minn.Stat. § 145.411, subd. 2, which states:
*1360During the second half of its gestation period a fetus shall be considered potentially ‘viable’.
By treating the statute in this manner, the first provision in the same subdivision, defining viability as the ability “to live outside the womb even though artificial aid may be required,” will remain in effect. Such a definition of viability is clearly permissible. A statutory definition need not place viability, which is essentially a medical concept, at a specific point in the gestation period, Planned Parenthood of Central Missouri v. Danforth, supra, - U.S. at -, 96 S.Ct. 2831; a definition in terms of potential ability to survive outside the womb, albeit with artificial aid, is sufficient. Id. at----, 96 S.Ct. 2831.
We can also sustain the validity of § 145.-415, subds. 1 and 2. In my judgment, these subdivisions only require a physician to exercise reasonable care to sustain the life of a fetus that is liveborn. This leaves the decision, as to the measures to be taken, to the judgment of the attending physician and that is where the Supreme Court has indicated the decision belongs. I am cognizant of the fact that sustaining the statute might result in a few physicians using procedures to effect an abortion that would insure a stillborn fetus. I cannot believe, however, that the number would be significant. On the other hand, the statute would serve to alert physicians to a special responsibility in those cases where there is doubt as to the length of the pregnancy and the viability of the fetus.
I also continue to adhere to my dissent in Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.) (Gibson & Heaney, JJ., dissenting from denial of petition for rehearing en banc), 419 U.S. 891 (1974). Therefore, I dissent from the affirmance of the District Court’s finding that Minn.Stat. § 145.414 is unconstitutional as it applies to public hospitals and institutions. In my view, public hospitals and institutions should not be compelled to perform abortions until it has been determined that the right of a pregnant woman to have an abortion cannot otherwise be reasonably protected.
I concur in the decision of the majority to remand the question of the constitutionality of the regulations to the District Court. I would go a step further, however, and hold that the need for counseling services is so immediate and so great,6 and the constitutionality so apparent,7 that the following regulation with respect to counseling should be sustained without further action by the District Court:
MHD 275: Program Requirements
(a) Admission Procedures
(1) Counseling Services
Counseling shall be offered and made available on the premises. Social services and psychological consultation shall be offered and made available either on the premises or through referral.
Minn.Reg. MHD-275.
The regulation follows the “Guidelines for the Performance of Abortions” adopted by the Minnesota State Medical Association in May, 1973. The guidelines, which were *1361received as an exhibit at the District Court hearing, provided:
COUNSELING SERVICES
Physicians should make counseling services an integral component of their abortion programs. Counseling services should be readily available to all women seeking abortion services. Each abortion service shall provide abortion counseling if desired by the woman, as well as a referral to clergy, social services or other appropriate mental health services when needed. Three basic principles of abortion counseling are that:
1. Specialized professional consultation, such as psychiatric, social service, psychological, religious, etc., should be available, not mandatory.
2. Be supportive and non-judgmental regardless of the circumstances of the pregnancy.
3. That it be an educational experience.
The aims of abortion counseling are:
1. To aid the woman in making a decision about her pregnancy.
2. To help her implement the decision.
3. To assist her in controlling her future fertility.
The manner in which counseling is carried out plays a major role in determining whether the woman is protected against exploitation and is treated in a safe, humane, and dignified manner. The following standards are recommended to accomplish this:
1. Non-judgmental and supportive explanation of all alternatives available including social, medical, and financial assistance where available.
2. Counseling should serve, when appropriate, to simplify and expedite the provision of abortion services. It should not impose unnecessary medical risk by delaying the obtaining of these services.
3. Specialized professional consultation, such as psychiatric, social service, psychological, religious, etc., should be available, but not mandatory.
4. Preventive measures including contraception and/or sterilization, with specific plans for followup should be discussed with each woman.
Factors to consider in counseling:
1. Pregnancy termination may be part of,the problem, not just the solution. The fact that a woman has become pregnant may be a symptom of underlying psychological conflicts. Opportunities should be available for further counseling.
2. Physicians are encouraged to acquire counseling techniques. (Emphasis included.)
. See Roe v. Wade, 410 U.S. 113, 153-154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Accord, Planned Parenthood of Central Missouri v. Danforth, - U.S. -, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976).
. Doe v. Bolton, supra, 410 U.S. at 192, 93 S.Ct. 739. See also Roe v. Wade, supra, 410 U.S. at 153, 163, 93 S.Ct. 705. Medical literature outlines a role for the attending physician in the abortion-decision making process which is no less demanding. See, e. g., Butler and Fujita, Abortion Screening and Counseling: A Brief Guide for Physicians, 50 Postgraduate Medicine, Oct. 1971, at 208; Margolis, Some Thoughts on Medical Evaluation and Counseling of Applicants for Abortion, 14 Clinical Obstetrics and Gynecology 1255 (1971); West and Walsh, The Need for Pre-Abortion Counseling — Now More than Ever, 59 Nebraska Medical Journal 34 (1974).
. According to a nationwide survey of health institutions and physicians conducted by the Alan Guttmacher Institute, legal abortion is now one of the most frequently performed surgical procedures. The number of abortions reported for 1974 (899,850) is twenty-one percent greater than for 1973 (742,460), while the projected total for 1975 (998,020) represents an increase of eleven percent over 1974. Weinstock, Tietze, Jaffe and Dryfoos, Abortion Need and Services in the United States, 1974-1975, 8 Family Planning Perspectives, March/April 1976, at 58-59.
The increase in the number of abortions performed from 1973 through 1975 is paralleled by a sharp rise in the number of abortions reported by non-hospital clinics. Whereas in the first quarter of 1973, non-hospital clinics accounted for forty-two percent of reported abortions, this figure had increased to fifty-five percent by the first quarter of 1975. Id. at 66. Furthermore, abortion services are highly concentrated among comparatively few large volume providers (mostly non-hospital climes) in relatively few metropolitan areas. During the first quarter of 1975, seven percent of all providers (thirty-one private hospitals, eight public hospitals and ninety-eight non-hospital clinics) performed fifty-two percent of all reported legal abortions. Id. at 67.
. See, e. g., Marcin and Marcin, The Physician’s Decision-Making Role in Abortion Cases, 1975 The Jurist 66 (1975); Klaus, A Medical Cop-Out?, 133 America 68 (1975).
. See Ex Parte Endo, 323 U.S. 283, 299, 65 S.Ct. 208, 89 L.Ed. 243 (1944); McMahon v. City of Dubuque, Iowa, 255 F.2d 154, 160 (8th Cir.), cert. denied, 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958).
. Counseling is an integral part of abortion services. The manner in which referral and counseling are carried out plays a major role in determining whether the abortion patient is treated in a safe, humane, and dignified
manner, and protected against exploitation. American Public Health Association, Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971). See also McLaughlin, Abortion Standards, New York City Board of Health, 14 Clin.Obstet. & Gynecol. 25, 31 (1971); Margolis, supra at note 2; Butler and Fujita, supra at note 2; West and Walsh, supra at note 2; Gedan, Abortion Counseling With Adolescents, 74 Am.J.Nursing 1856 (1974); Asher, Abortion Counseling, 62 Am.J. Pub.Health 686 (1972).
. In Planned Parenthood of Central Missouri v. Danforth, supra, - U.S. at -, 96 S.Ct. 2831, the Supreme Court recognized that the particularly stressful nature of the decision to abort distinguishes it sufficiently from other medical procedures to justify a state regulation requiring a written consent during the first trimester. It follows, I believe, that a state requirement for counseling, before the written consent is given, is valid. It is only by careful counseling that there can be assurance that the woman’s consent has been freely and intelligently given.