(concurring in result).
I concur in the result because I believe there is no “case or controversy” within Article III § 2 of the United States Constitution, nor is there an “actual controversy” under 28 U.S.C. § 2201, the declaratory judgment statute. Insofar as the majority opinion is bottomed on the doctrine of “absention”, however, I hesitate to agree. Had the abortion not been performed, the question would not have become moot and thus a justiciable controversy would exist. I would under those circumstances hold that under the philosophy and teachings of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), and other cases, the doctrine of abstention should not serve as a bar, and the court had ought to take jurisdiction of the cause. In the present posture of the case, however, we are in reality asked to do nothing but render an advisory opinion. The exigency has disappeared and the irreparable harm contemplated, if such it be, has gone.
Once a state criminal prosection is commenced, it may or may not be that 28 U.S.C. § 2283 will prohibit federal interference with prosecutions brought under state criminal laws. Prior to any such prosecution, however, I subscribe to the view that the entire medical profession and innumerable pregnant women live under the sword of Damocles. The exercise of their best medical judgment, the giving of advice and the pregnants’ freedom of choice is “chilled” by the cloud of a statute which renders their actions illegal and puts them in jeopardy of criminal prosecution with the resultant publicity, possible public disgrace, loss of hospital privileges, threat of license revocation, etc. The constitutionality of the statutes was properly brought into the federal forum for a determination, but now I agree must be dismissed but only for lack of a justiciable controversy.