concurring in part and dissenting in part.
I join Parts A and B of the Court’s opinion, holding invalid Mo.Ann.Stat. §§ 188.025 (hospitalization requirement) and 188.029 (tests to determine viability). I also join Part D(2)(c), upholding § 188.205, the ban on expenditure of public funds for *1085abortions not necessary to save the life of the mother.
As to Part D(l), invalidating those portions of §§ 188.205, 188.210, and 188.215 forbidding the use of public facilities, employees, or funds to encourage or counsel certain abortions, I concur in the result. These statutes sharply discriminate between kinds of speech on the basis of their viewpoint: a physician, for example, could discourage an abortion, or counsel against it, while in a public facility, but he or she could not encourage or counsel in favor of it. That kind of distinction is flatly inconsistent with the First Amendment, as incorporated against the states by the Due Process Clause of the Fourteenth Amendment.
As to Parts D(2)(a) and (b), I also concur in the result. I am unable to distinguish this case from Nyberg v. City of Virginia, 667 F.2d 754 (8th Cir.1982), appeal dismissed and cert. denied, 462 U.S. 1125, 103 S.Ct. 3102, 77 L.Ed.2d 1358 (1983). This panel is bound by Nyberg.
As to Part C, I respectfully dissent in part. Of course a governmental declaration about when human life begins, insofar as it is used to justify regulation of abortion, is unconstitutional. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). But I do not see why Mo.Ann.Stat. § 1.205 should not be upheld insofar as it relates to subjects other than abortion. The statute, for example, may mean that the negligent killing of a fetus gives rise to a state-law tort action for wrongful death. Neither the District Court nor this Court suggests that such a change in the common law, if limited to non-abortion situations, would violate the federal Constitution. Just such a purpose was apparently part of what the State Legislature had in mind when it passed this law. Section 1.205.4, which the Court does not quote, reads as follows:
Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.
The implication is that the section may properly be interpreted as creating causes of action against persons other than the mother. The statute also, the State argues, relates to the property rights of the unborn, and to the protection extended to them by the criminal law. Again, legislation on these subjects, wise or unwise, is within the purview of state legislatures, absent some constitutional obstacle, and none is suggested.
In short, I would not hold §§ 1.205.1(1) and (2) facially invalid, but only invalid as applied to the subject of abortion.
As to Part E of the Court’s opinion (relating to attorneys’ fees), I concur.