(dissenting).
Although I concur in Judge Stevens’ disposition of the jurisdictional, mootness and standing issues and I have no quarrel with his general discussion of the right to privacy, I dissent completely from his conclusion that the right to privacy does not include the right of expectant parents to have the male present with the female in the delivery room of a public hospital in cases where the attending physician has consented to that procedure.
Although the plaintiffs pray on appeal “that this court should reverse on the standing issue and remand the case to the district court for a trial on the merits,” Judge Stevens has bowed to the expertise of the medical profession without the benefit of an evidentiary hearing. Nevertheless, the record before us includes uncontradicted evidence that under the LaMaze method of childbirth “in the more than 45,000 cases collected in . surveys, there was not one infection traceable to the practice and not one malpractice suit.”
The plaintiffs also submitted the affidavit of a Clinical Professor of Obstetrics and Gynecology at the University of Chicago School of Medicine who stated that he has delivered approximately one thousand babies in the past four years with the fathers present in the delivery room and it is his opinion:
That . . . the presence of the father during the delivery of the infant is beneficial to the mother, the father, the infant and himself;
That the father’s presence in the delivery room has an extremely stabilizing effect on the mother, thereby aiding her in the second stage of labor (delivery);
*723That the mother’s cooperation during the second stage of labor helps to enable her to deliver the baby sooner and more safely because she will be calmer, and thus able to bear down more intensively, thus shortening this stage of labor;
That because of this shortened labor, the newborn will have increased probability of a healthy birth and a decreased probability of hypoxia (insufficient oxygen);
That the father’s presence in the delivery room does not create a need for additional personnel in the delivery room, and that in fact, no greater number of hospital personnel are in attendance when the father is present than when he is not;
That there have been no serious incidents attributable to the presence of the father in the delivery room in my experience;
That I have found no evidence in current obstetrical literature indicating that the presence of husbands in the delivery room (assuming proper safeguards are taken) would be hazardous and in fact the most comprehensive study to date on the subject, published by the International Childbirth Education Association in 1968, reported that out of 45,050 husband attended deliveries there were no cases of puerperal infection traceable to the practice.
The cases establishing fundamental familial and procreative rights are pertinent: Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (parents have right that children study German language); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (parents have right to direct education of children); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (person has right not to be compulsorily sterilized); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (married persons have right to use contraceptives); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (black and white persons have right to marry each other); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (unmarried persons have right to use contraceptives); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (unmarried father has custodial rights to his child); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (person has right to procure abortion at certain times and under certain circumstances).
Mr. Justice Cardozo believed that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body . .” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914). Consequently, the informed consent of the patient is necessary before the doctor deals with the patient’s body. Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772 (1972), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
In the present case the patients have expressed their desire for a particular form of childbirth which is safe and sanitary for mother and child and imposes a minimum burden on the hospital. The patients’ doctors are willing to perform childbirth in the desired way and in fact the patients’ claim is conditioned upon the consent of the attending physician, yet the patients’ desires as to the manner in which they wish their bodies dealt with has been frustrated by rejection of the method by “the Medical Staff” of the defendant hospital.
This problem is the exact one confronted by Mr. Justice Douglas in his concurring opinion in Doe v. Bolton, 410 U.S. 179 at 219-20, 93 S.Ct. 739 at 761, 35 L.Ed.2d 201:
The right of privacy has no more conspicuous place than in the physician-patient relationship unless it be in the priest-penitent relationship.
It is one thing for a patient to agree that her physician may consult with *724another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy — the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Fourteenth Amendment — becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State.
The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. . . . The good-faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, . . . can be contained or controlled only by discretely drawn legislation that preserves the “liberty” and regulates only those phases of the problem, of compelling legislative concern.
* sf: sk * sfc s{:
To protect the woman’s right of privacy . . the control must be through the physician of her choice and the standards set for his performance.
Although it is true that the prohibition of the husband from the delivery room is not a deprivation of the magnitude of the prohibition of an abortion neither is the state’s interest in the former of the same magnitude. In fact, it is so non-compelling as to be virtually nonexistent: the hospital fears that the participating husband may catch a glimpse of other women in labor and that it does not have facilities for him to don and doff his hospital gown.
Furthermore, the magnitude of the importance of the presence of the expectant father should not necessarily be downgraded. The moment of delivery is a crucial psychological milestone in the life of the mother. It is probably equally crucial to those fathers who are allowed to be present. In any event, to deny the right of her mate’s presence when she desires it at a critical time is unnecessarily, and I believe unconstitutionally, cruel to the expectant mother.
In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), Mr. Justice Black said for the Court at 72, 91 S.Ct. at 1299:
Certainly this construction [permitting abortions for mental health reasons] accords with the general usage and modern understanding of the word “health,” which includes psychological as well as physical wellbeing. Indeed Webster’s Dictionary, in accord with that common usage, properly defines health as the “[s]tate of being sound in body [or] mind.” Viewed in this light, the term “health” presents no problem of vagueness. Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.
I would reverse and remand for a trial on the merits.