(dissenting).
I am unable to agree with the majority of this court as to the constitutionality of the subj ect statutes and' would sustain the lower court’s determination that these statutes suffer'from “overbreadth”. I'am in accord with their rejection of the “vague*151ness” and “equal protection” arguments advanced by appellees in their assault on the abortion statutes and also with the basic principle that the judiciary should zealously respect the doctrine of separation of powers and be loath to interfere in matters committed to legislative wisdom.
My colleagues recognize, however, that close judicial scrutiny is warranted in the area of personal liberty and that legislative encroachment thereon can be sustained only if a compelling interest exists. The majority opinion focuses upon the nature of the interests of the State in protecting fetal life reflected in the statutes. Assuming that the abortion statutes are attempts to balance the rights of the fetus against the rights of the woman, the balance struck by the State cannot be supported on the basis of “compelling interest.”
In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the United States Supreme Court held that the decision to use contraceptive devices is an aspect of a relationship lying within a pe-numbral zone of privacy created by several fundamental constitutional guarantees, and that a state law forbidding the use of such devices unduly invades that area of protected freedom with maximum destructive effect upon that relationship. In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), that Court once again denounced governmental intrusion into the private realm of family life. My colleagues indulge in a very narrow construction of the principles enunciated in these cases. To me, these cases clearly identify the right urged here on behalf of pregnant women, i. e., the power to determine whether or not she wishes to bear a child.
Our abortion statutes force a woman to carry to term a pregnancy that is the result of rape or incest. They require a woman to carry to natural term a fetus likely to be born a mental or physical cripple. Once she is pregnant, she is required to hazard the risk of pregnancy and delivery no matter what the degree of risk to her own health might be. The State has foisted these burdens upon her, under the guise of its police power, but affords her no remedy or recognition of her needs, physical or mental. I concede that the Ninth Amendment right to choose to have an abortion is not unqualified or unfettered, but legislative limitations of such right must pass the test of “compelling State interest.” I agree with the rationale of Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill. E.D.1971) in that I find no compelling state interest to justify requiring a woman to risk physical and emotional harm short of death or to carry a child begotten by rape or to require her to carry a fetus likely to be born a mental or physical cripple. A woman’s interest in terminating a pregnancy under these circumstances far outweighs any state interest in the birth of such a child. Denial of therapeutic abortions in these instances, so far as I am concerned, is an overreaching of the police power. Since our abortion statutes intrude into areas in which the State’s interest is minimal, they cannot withstand the assault on their constitutionality.
In coming to this conclusion, however, it is not my intention to give judicial sanction to abortion upon demand.1 I would *152hold that our statutes are unconstitutional because they impermissibly and unduly invade and restrict women’s right to privacy and basic liberty as guaranteed by the due process clause of the Fourteenth Amendment. Although the matter of abortion is an appropriate area for legislative action, I cannot approve legislation which impinges upon such right to a degree beyond justification.
. Four states now allow abortion upon a woman’s request. See, 11 Alas.Stat. § 11.15.060; Hawaii Stat. tit. 25 § 453-16; New York Penal Law, McKinney’s Consol.Laws c. 40 § 125.05 (1971 Supp.) ; Wash.Rev.Code Ann. § 9.02.060 (1971 Supp.). Eleven states allow abortion if the pregnancy presents a danger to the physical or mental health of the mother or is the result of rape or incest. See, 41 Ark.Stat. § 304; Colorado 1971 Session Laws, art. 6 § 40-6-101; 24 Del. Code Ann. § 1790; 26 Ga.Code Ann. § 9925a (1971 Supp.) ; 21 Kan.Stat.Ann. § 3407 (1971 Supp.) ; 43 Md.Code Ann. § 137 (1971 Supp.) ; N.M.Stat. 40A-5-1 (1971 Supp.) ; N.C.Gen.Stat. § 14-45.1 (1971 Supp.) ; Or.Rev.Stat. § 435.415; S.C.Code Ann. § 16-87 (1971 Supp.) ; Va.Code 18.1-62.1 (1971 Supp.). California enacted a like statute, California Health & Safety Code §§ 25950-25955 (West Supp.1971). However, in a decision rendered on November 22, 1972, in *152the case of People v. Barksdale, 8 Cal. 3d 320, 105 Cal.Rptr. 1, 503 P.2d 257, the California Supreme Court invalidated the entire Therapeutic Abortion Act on the ground that §§ 25951 and 25954 were void for vagueness.