(dissenting):*
“ * * * One of the basic values of [the right to] privacy is birth control, as evidenced by the Griswold decision. Griswold’s act was to prevent forma*1233tion of the fetus. This, the court found, was constitutionally protected. If an individual may prevent conception, why can he not nullify that conception when prevention has failed?” Mr. Justice Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola Law Review of L. A. 1, 8 (1969)
Because, answer the majority of this Court, a “human life” comes into existence at conception, and the State’s interest in protecting that life overrides the fundamental human rights of the mother to the control of her own body and to choose whether to bear a child. But in my view the history and operation of the Louisiana abortion law belie the majorplty’s construction of a purpose to protect ( human life. If the purpose is to protect life, this law is “the very mirror image”1 of what one would suppose such a law to be. The law rather seems to be an effort to enforce certain views of private morality against those not sharing those views, see note 25, infra. Far from protecting human life it tends in practice to destroy it. And not the least of the evils of this law is that it operates as an invidious discrimination ^against the poor.
I
Fundamental Nature of the Mother's Rights
In Part I of this opinion I pass over the interests of the fetus, and, for purposes of analysis, focus solely on the impact of the abortion law on the mother. In this Part I set up an artificial assumption, that the fetus is no more than a collection of living cells, a part of the mother’s own body that, when separated, dies. In the next two Parts of the opinion I consider the exact nature of the State’s interest in the fetus.
In a series of cases, culminating in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1964), the Supreme Court of the United States has established an area of fundamental human liberty in matters relating to marriage, the family and children. This development is summarized by Mr. Justice White in his concurring opinion in Griswold (at 502, 85 S.Ct. at 1691): “It would be unduly repetitious, and belaboring the obvious, to expand on the impact of this [Connecticut anticontraceptive law] on the liberty guaranteed by the Fourteenth Amendment against arbitrary and capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right ‘to marry, establish a home and bring up children,’ Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 and ‘the liberty * * * to direct the upbringing and education of children,’ Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070, and that these are among ‘the basic civil liberties of man.’ Skinner v. State of Oklahoma, 316 U.S, 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 [compulsory sterilization of habitual criminals]. These decisions affirm that there is a ‘realm of family life which the State cannot enter without substantial justification. Prince v. Com. of Massachusetts [321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645]’ * * * ” (emphasis added).
Griswold reaffirmed and extended these principles. In the most sweeping terms the Court struck down a criminal law which infringed on the rights of Connecticut couples to practice contraception. Although Mr. Justice Douglas’s opinion for the Court focused upon the right of “marital privacy,” there is no question that the right to prevent unwanted birth of children was involved as well.2 Mr. Justice Goldberg (joined *1234by Mr. Chief Justice Warren and Mr. Justice Brennan) spoke of “The marital right to bear children and raise a family,” 381 U.S. at 497, 85 S.Ct. at 1688 and found that the Constitution protected “against * * * totalitarian limitation of family size, which is at complete variance with our constitutional concepts.” Id. (emphasis added); and Mr. Justice White stressed the fact that “The Connecticut anti-contraceptive statute * * * forbids all married persons to use birth control devices regardless of whether their use is dictated by considerations of family planning, health, or even life itself * * * [and that the] clear effect of these statutes, as enforced, is to deny disadvantaged citizens * * access to medical assistance and up-to-date information in respect to proper methods of birth control." 381 U.S. at 503, 85 S.Ct. at 1691, 1692 (emphasis added)
It is true that the Griswold Court did not pass upon the precise question presented here: Griswold involved contraception; this case involves abortion. Nevertheless Griswold is critically relevant to the present case. For unlike a procedural holding which may be narrowly confined to its particular facts, the Griswold decision rested upon the broadest and most sweeping principles of substantive constitutional law. The various opinions may have disagreed as to the methodology by which, or the particular Amendments from which, the right of family privacy is derived. But on one point the seven majority Justices agreed: The “right,” be it derived from the First or Fourth, the Ninth or Fourteenth, Amendments, or all of them, was a right “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 381 U.S. at 487, 85 S.Ct. at 1683.
The language of the Griswold opinions is strong and unequivocal. Mr. Justice Harlan found that “For reasons stated at length in my dissenting opinion in Poe v. Ullman * * * [the Connecticut] enactment violates basic values ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut [citation omitted].” 381 U.S. at 500, 85 S.Ct. at 1690. In Mr. Justice White’s view “[the] decisions affirm that there is ‘a realm of family life which the State cannot enter’ without substantial justification [citation omitted].” And Mr. Justice Goldberg, Mr. Chief Justice Warren, and Mr. Justice Brennan considered that “the integrity of that [family] life is fundamental,” Griswold v. Connecticut, supra, 381 U.S. at 495, 85 S.Ct. at 1687, that it is one of “the requirements of a free society,” Id. at 493, 85 S.Ct. at 1687 (quoting from Poe v. Ullman, dissenting opinion of Mr. Justice Douglas), and that it “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ * *
Id. at 493, 85 S.Ct. at 1686.
For me, then, the Griswold case contains a broad command. It says, to this and other courts: You must protect the *1235privacy and intimacy of family life, for such relationships lie at the very core of a free society. And laying aside for the moment the interest of the State, I have no doubt that the Louisiana abortion statute falls within this sensitive area.
Indeed in some ways the right to have an abortion is even more compelling than the rights involved in Griswold. Contraception involves the first line of defense against an unwanted birth; abortion the last. At the point contraceptives are used birth is only a possibility; there are a number of forces tending to prevent it apart from contraception. When a mother seeks an abortion, however, she has already conceived. Unless a spontaneous abortion or miscarriage occurs, she is faced with the immediate reality of carrying and bearing a child against her will. At least two fundamental human rights are thus involved: The mother’s autonomy over her own body, and her right to choose whether to bring a child into the world.3
It is difficult to overstate the importance of what the mother has at stake. In physical terms alone the thought of making a mother carry and bear a child against her will is not a pleasant one.4 But the matter cuts much deeper than mere physical pain. Carrying and bearing a child may involve anxiety arid trauma and great psychic pain. See Aarons (M.D.), “Therapeutic Abortion and The Psychiatrist,” American J. Psychiat. 124:6, December 1967. Infrequently it results in suicide. Id. In some cases the child may be born deformed, or the birth may in this or other respects impair the physical and mental health of the mother. Poor families, with little ability to take advantage of means of self-protection that are of easy access to the rich, see, e. g., Griswold v. Connecticut, 381 U.S. 479, 503, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1964) (concurring opinion of Mr. Justice White), often suffer physical, and therefore possibly other kinds of deprivation by the constant birth of children. But perhaps most important, the birth of a child unalterably affects the emotional lives of both mother and child. At its best, it makes possible a relationship of love; at its worst, it creates an unwanted child. When the State seeks to touch the very core of a person’s being in such a fashion, and to thrust upon mother and (potential) child such a relationship by force, it violates “those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political in*1236stitutions * * *.’ [citation omitted].” Griswold, supra, 381 U.S. at 493, 85 S.Ct. at 1687 (concurring opinion of Mr. Justice Goldberg). As Mr. Justice Brandéis said, dissenting in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928):
“The protection guaranteed by the [Fourth and Fifth] amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”5
That the State in these circumstances bears a heavy burden of proof to justify the law is beyond doubt.6 Louisiana urges upon us the protection of human life, a claim which bears examining. Meanwhile, however, both parties have confused the matter by their use of the science of biology.
II
The Relevance of Biology
The biological evidence presented in this case suggests that some sort of human organism exists from the time of conception.7 The parties, however, would go further and make biology conclusive, for both court and legislature, as to the existence or non-existence of a “human being” at the time of conception. These efforts seem misplaced.
The meaning of the term “human being” is a relative one which depends on the purpose for which the term is being defined. To the scientist a “human being” may be no more than union of sperm and egg; to the poet or to society as a whole the term may connote something else.8 Science at best marks the *1237outermost limits of life; it cannot tell us nearly so well what a human being is as it can what a human being definitely is not. The Romans, for example, practiced infanticide with indifference.9 No doubt the science of the Romans regarded the infant as a human being; but can one say the Romans did?
Present practice as well shows the futility of attempting to frame the question in terms of absolutes.10 In Louisiana, for example, a mother who intentionally destroys her own fetus is guilty of no criminal offense, see, e. g., Simmons v. Victory Indus. Life Ins. Co., 18 La.App. 660, 139 So. 68 (Orleans Ct.App.1932); however, the moment the infant is born, the same act is punishable by the penalty “which the law exacts in all such cases, which penalty is death.” State of Louisiana v. Burks, 202 La. 167, 11 So.2d 518, 520 (Sup.Ct.La.1942); La.Rev.Stat. Ann. 14:30 (1950).
“To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity — the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of the fetus. This would not be the case if the fetus constituted human life.” Loyola of L.A.Rev., vol. 2 (1969).
The question in this case, then, is not the abstract one of whether a fetus is a “human being,” but the more concrete one of the extent to which human value has been assigned to the fetus by Louisiana. We must analyze the precise nature of the State’s interest in the fetus to determine whether, a part from the “label” it carries, it is in substance the kind of interest which is “compelling” and which “subordinates” the rights of the mother. Griswold v. Connecticut, 381 U.S. 479, 496, 504, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).11
*1238III
The Louisiana, Abortion Statute
The opinion of the majority reads very much as though this were a case involving the validity of an ordinary police measure. Every doubt is resolved in favor of the law. Normally, of course, this is as it should be when the serious question of the constitutionality of legislation is raised. But “Surely the right involved in this case * * * ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive from shifting economic arrangements.’ Kovacs v. Cooper * * * (opinion of Frankfurter, J.).” Griswold v. Connecticut, 381 U.S. 479, 502, 85 S.Ct. 1678, 1691, 14 L.Ed.2d 510 (1965) (concurring opinion of Mr. Justice White).
“Where there is a significant encroachment upon personal liberty,” the presumption of constitutionality is reversed, and “the State may prevail only upon showing a subordinating interest which is compelling.” Griswold, supra, at 504, 85 S.Ct. at 1692 (concurring opinion of Mr. Justice White) (emphasis added). I take it then that the State has the burden of proof, see, e. g., Shapiro v. Thompson, 394 U.S. 618, 634-638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969);12 Sherbert v. Verner, 374 U.S. 398, 406-407, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963);13 Bates v. City of Little Rock, 361 U.S. 516, 525-527, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960);14 Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942),15 or that, at the very least, the fundamental rights at stake here
“require particularly careful scrutiny of the State needs asserted to justify their abridgment.” Mr. Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1777, 6 L.Ed.2d 989 (1961)
I turn to the statute [La.Rev.Stat.Ann. § 14:87 (Supp.1970)]:
“87. ABORTION
Abortion is the performance of any of the following acts, with the intent of procuring premature delivery of the embryo or fetus:
(1) Administration of any drug, potion, or any other substance to a female ; or
(2) Use of any instrument or any other means whatsoever on a female.
Whoever commits the crime of abortion shall be imprisoned at hard labor for not less than one nor more than ten years.” As amended, Acts 1964, No. 167.
*1239Defendants urge again and again in their brief, and the majority of this court accept, the proposition that we are here dealing with a statute whose purpose is the protection of “human life.” If this is true it is certainly not apparent from the statute itself. Unlike, for example, the Wisconsin statute,16 which specifically refers to the “life” of an unborn “child,” and defines “unborn child” as “a human being from the time of conception until it is born alive,” the Louisiana statute makes no reference to “human life;” it refers only to the “embryo or fetus.”17 In Wisconsin the crime of abortion consists of “intentionally destroy [ing] the life of an unborn child.” (emphasis added) In Louisiana, on the other hand, the crime consists of performing various acts on a “female” for the “purpose of procuring premature delivery.” (emphasis added). Thus in Wisconsin no crime is committed unless the life of the fetus is actually terminated. In Louisiana, “[The abortion statute] does not use the word ‘attempt,’ but penalizes the felonious administration of any drug, potion, or anything to any woman, for the purpose of procuring abortion or premature delivery, and prescribes only one penalty. Hence Section 807 makes no distinction between the attempt and the actual procurement of abortion or premature delivery.” State of Louisiana v. Mauvezin, 136 La. 746, 67 So. 816 (1915) (emphasis added). So far as I have been able to determine, abortion is the only crime in Louisiana in which there is no distinction between an attempt and commission of the substantive crime.18 (Indeed the “attempt” in Louisiana is the substantive crime). In past versions of the statute the subject of an abortion was a “pregnant”19 female; in 1964 the legislature decided that any “female” would do. Finally, it is not even certain whether an intent to terminate fetal life is necessary for a conviction under the Louisiana statute. The 1870 statute, as *1240amended, La.Acts, 1888, No. 24,20 prohibited certain acts with intent to procure an “abortion” or “premature delivery”. (emphasis added). Today the statute does not even use the word “abortion” but simply the broader term “premature delivery.”
Thus the Wisconsin statute at least purports to emphasize the life of the fetus; the Louisiana statute focuses more on an intent to interfere with nature irrespective of the fate of the fetus (or indeed of whether there even is a fetus). Along with “prostitution,” “crimes against nature,” etc. the crime of abortion in Louisiana is an “Offense Affecting Sexual Immorality”21 rather than an “Offense Against The Person.”22 The provision of the Criminal Code immediately following Abortion, entitled “Distribution of Abortifacients,”23 provides one penalty for distribution of abortifacients or contraceptives24 (Cf. Baird v. Eisenstadt, 1 Cir., 1970, 429 F.2d 1398: “We are led inevitably to the conclusion that * * * it is contraceptives per se that are considered immoral * * *.”)25
*1241Concern for the protection of human life, then, is hardly manifest from the face of the statute.26 In actual operation the statute fares even worse. Since 1870, when the abortion law was first enacted, there have been no more than four reported decisions of prosecutions.27 There are only two reported prosecutions subsequent to 1955. All of these prosecutions are against the “criminal” abortionist; as against the physician there are no reported decisions of prosecutions.28
Perhaps even more revealing, however, is the fact that the woman who submits to abortion is guilty of no criminal offense:
“It is true that a female who voluntarily becomes the subject of an abortion, without justifiable medical reason, is guilty of a detestible and revolting offense against the laws of nature, which is universally condemned, but notwithstanding this, such woman is not guilty of any criminal offense known to the laws of this state.” Payne v. Louisiana Ind. Life Ins. Co., 33 So.2d 444 (Orleans Ct. App.1948)
This is true even in the case where the woman intentionally aborts herself. Simmons v. Victory Indus. Life Ins. Co., supra. It may be argued that the reason for exempting the mother is to encourage her to testify against the “abortionist.” But surely this puts the cart before the horse. Suppose, for example, that A hires B to kill C; would the State *1242grant A immunity in exchange for his testimony against B? If abortion is truly regarded as the destruction of human life, the mother is the principal criminal; the “abortionist” is merely her paid executioner. If the State really means to protect the life of the fetus why does it fail to deter the person most directly responsible for taking it? Save for the instigation of the mother the “criminal abortionist” would not exist. Finally, why is the woman who aborts herself immune? Perhaps it will be argued that otherwise she may be afraid to seek medical help if injury results; but this proves only that the health of the mother is considered more important than the preservation of the fetus.29
See conclusion “2”, infra.
The conclusions I draw from the foregoing facts are as follows:
(1) In practice the efforts of the State on behalf of the fetus belie the claim of a compelling state interest. Abortion actually occurs on a massive scale in the United States — estimates run between one and three million per year. Yet there is no significant attempt at deterrence. “Lamented” by some, “decried” by others, the fact remains that the phenomenon of abortion is ignored by most. The fetus in Louisiana is shielded neither from mother nor physician by the criminal law; rather the mother is shielded (rather imperfectly) from the quack. Abortion is thus a singular “crime” in our law; it is a crime without a criminal. A poor person who may steal for the most pressing human needs is branded as a “thief” and punished by the criminal law — often severely. This comes as no surprise: Our society holds the institution of private property in high regard; he who tampers with it does so at his peril. A mother, however, may take the life of her fetus at pleasure so far as the criminal law is concerned. In practice, so may a licensed physician. Surely the remarks of Mr. Justice Frankfurter in the Connecticut Birth Control ease are relevant here:
“* * * The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. * * * Deeply embedded traditional ways of carrying out state policy * * * — or not carrying it out — are often tougher and truer law than the dead words of the written text.” Poe v. Ullman, 367 U.S. 497, 502, 81 S.Ct. 1752, 1755, 6 L.Ed.2d 989 (1961)
(2) The statute is irrational and self-contradictory, a menace to public health without serving any compensating public need. As previously noted prosecution seems to be almost exclusively against the quack and not the physician. Since the crime, qua fetus, is equally great when committed by a physician the enforcement of the statute manifests little or no concern for the fetus but rather an overriding concern for the protection of the safety and health of the mother. Yet the menace to public health is clearly the product of the statute itself. The statute’s primary effect is not to prevent or deter abortion, see “Conclusion (1),” supra, but simply to make it unsafe. Can it be said that there is a “reasonable relation between the prohibition * * * and the protection of the public health, education and welfare”? Sperry & Hutchinson Co. v. Director, 307 Mass. 408, 418, 30 N.E.2d 269, 275 (1940), or that the statute “bears a reasonable relation to a proper legislative purpose * * Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed 940 (1934); Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)?
*1243(3) The statute inflicts cruel and unusual punishment on the mother and violates equal protection of the law. As pointed out, the State does not attempt to deter abortion by imposition of criminal sanctions directly on the principal actor — the mother. At the same time, however, it makes it illegal for anyone else to perform an abortion. This of course has the effect of raising the price of abortion at all levels of skill. Thus to the extent that the statute deters the mother, it does so only by putting safe abortion beyond her means or by making her risk serious bodily injury at the hands of a relatively low-priced unskilled abortionist.
In Baird v. Eisenstadt, supra., the Court of Appeals for the First Circuit held that it was impermissible for Massachusetts, through its anti-contraceptive law, to pursue a policy of deterring fornication “by making the penalty a personally, and socially, undesired pregnancy.” The present case is probably distinguishable from Baird. I do not think the legislature intended30 to encourage women to risk their health and lives; but because the statute makes abortion illegal for everyone but the mother it works precisely that result.
This purposeless suffering which the statute brings about is made all the more intolerable by the fact that its victims are primarily the poor;
“The present law places an unfair discrimination on the poor in that persons with money may obtain safe abortions either by travelling to other jurisdictions, by going to high priced competent though illegal abortionists, or by obtaining legal abortions here based on ‘sophisticated indications.'" Report of the Governor’s Commission Appointed to Review New York State’s Abortion Laws, 17 (Mar.1968)
Deaths and maiming from abortion by nonmedical means such as soaps, chemicals, knitting needles, coathangers, etc., appear to be the basic if not the exclusive property of the non-white poor. Gold,31 for example, shows that between 1960-62 in New York City abortion accounted for 55.5%, 49.4% and 25.2% respectively of the Puerto Rican, nonwhite and white puerperal death rates. Gold does not report figures for injury short of death, but one can imagine the toll they must take in the ghetto.
*1244If the penalty is built-into the statute, so is the discrimination. Cf. Griswold v. Connecticut, 381 U.S. 479, 503, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965);32 Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).33 See also note 31, supra. By making abortion legal for the mother, but illegal for anyone else, the statute’s sole effect on the mother is to raise the price of abortion. Abortion becomes less available to the degree to which one is not able to afford the “tax.” For some the higher price is not an obstacle; for others it is either prohibitive, or, to the extent to which forces them to go to the less skilled practitioners (or to abort themselves), highly dangerous. If criminal sanctions were applied to well-off and poor women alike (not just in theory but in practice), as well as to the “abortionist,” the increased price of abortion would be an additional (as well as unavoidable) deterrent, but not the only one. But the Louisiana statute does not deter rich and poor alike by equal application of the criminal law; it simply makes safe abortion less available to the poor than it would otherwise be. The person with means remains perfectly free to procure a high-priced safe abortion without fear of criminal sanction. This discrimination is therefore far more than an unequal side-effect of an otherwise equal law. The law itself is unequal. It is a direct discrimination against the poor, a gross violation of this country’s “pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369, 68 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). Moreover, since the discrimination affects the most fundamental human rights —either by denying abortion to the poor altogether or by subjecting them unequally to risks of life and limb — “strict scrutiny * * * is essential, lest unwittingly, or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guarantee of just and equal laws.” Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (compulsory sterilization law) (emphasis added). See also note 32, supra. Many women lose the use of their sexual organs as a result of the abortion laws, see note 31, supra, just as did the habitual criminals in Skinner. I would hold the statute invalid on the ground of equal protection alone.
(4) The abortion statute neither has a clear purpose to protect fetal life, nor is there good reason to believe it significantly does so in fact, (except, perhaps, where the poor are concerned). See “Conclusions (1) and (3),” supra, text at notes 26-29, supra, Abortion and the Law 23 (Smith ed. 1967); Cf. Griswold v. Connecticut, supra, 381 U.S. at 498, 85 S.Ct. at 1689.34
These, then, are the weighty State “interests” for which the mother must suffer and, in an estimated 8,000 cases last year, die. I must dissent.35
*1245I attach as an appendix portions of the excellent opinion of Judge Clarence P. Cooper, which is otherwise not reported.
APPENDIX
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT OF THE STATE OF SOUTH DAKOTA, WITHIN AND FOR PENNINGTON COUNTY
STATE OF SOUTH DAKOTA,' Plaintiff, vs. H. BENJAMIN MUNSON, Defendant
MEMORANDUM DECISION April 6, 1970
CLARENCE P. COOPER, Circuit Judge:“* * most 0f the abortion laws were passed in the so called ‘Victorian’ era, a time when moral and religious fervor against anything regarded as sinful, resulted in many laws governing morals and personal conduct. The South Dakota statute dates back to 1877. Most of these laws governing personal or private conduct, like the ‘blue laws’ have either been repealed or have not been enforced. The laws prohibiting abortion represented a change from the common law which permitted abortion in the initial stages of pregnancy, before quickening of the fetus. * * *
“According to reliable estimates, more than a million American women had abortions last year. Of these about 350,-000 needed hospital care when they attempted to abort themselves, and more than 8000 of these self-help cases died. (Life Magazine, Feb. 27, 1970) Enforcement of the abortion laws has been chiefly against quacks and charlatans who have botched the job, and the woman lived to complain. Where death ensues, the prosecution has been for homicide. It is a rare case when a licensed physician has been prosecuted. In no instances has the woman been prosecuted, although the abortion laws are directed equally against the woman seeking an abortion.
“With such massive disregard for the abortion law, reflecting a radical change in public attitude, it is in order to determine whether the exercise of the police power in prohibiting abortion is ‘sanctioned by usage, held by prevailing morality to be necessary to public welfare, or endangers the vital interests of society’, criteria which over the years have been used to measure the right of the State to regulate personal and private conduct. * * * ”
I concur in those portions of the Court’s opinion which hold that we should not abstain and that the abortion laws are not unconstitutionally vague.
. Baird v. Eisensdtadt (1 Cir. 1970), 429 F.2d 1398.
. The United States Court of Appeals for the First Circuit has interpreted Griswold as establishing a fundamental right of birth control. Baird, note 1, supra. In *1234a case involving the application of the Massachusetts anti-contraceptive law to single persons the Court said:
“[W]e consider that [the law] conflicts with fundamental human rights. In the absence of demonstrated harm, we hold that it is beyond the competency of the state. See the various opinions in Gris-wold v. Connecticut, ante, particularly those of Mr. Justice Harlan and Mr. Justice White, concurring. See also Richards v. Thurston, 1 Cir., 4/28/70, 424 F.2d 1281.” (Aldrich, C. J.).
Several other courts have held that Griswold’s right of privacy extends to single persons, and, in the “absence of demonstrated harm,” to abortion as well as contraception: People v. Belous, 71 Cal.2d 996, 80 Cal.Rptr. 354, 458 P.2d 194 (1969); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis., 1970) ; see particularly State v. Munson (Cir.Ct., Pennington County, S. Dakota, April 6, 1970); Roe v. Wade, 314 F.Supp. 1217 (N.D.Texas, Civ. Nos. 3-3690-B & 3-3691-C, June 17, 1970). See also United States v. Vuitch, 305 F.Supp. 1032 (D.D.C., 1969).
I agree with these courts that Griswold establishes a right of birth control, and I see no reason to limit the right to married persons (see note 25, supra).
. The majority argue that the right to abortion cannot be equated with the general right to choose whether or not to bear a child since alternative means are available to prevent conception. This argument is unrealistic. More than a million women found it necessary to have abortions last year (Life Magazine, Feb. 27, 1970). Kinsey found that 22% of the married women interviewed had had one or more abortions by age 45. Abortion in the United States, 50, 54 (Calderon ed. 1958). Between 88 and 95% of the premarital pregnancies in his sample resulted in abortion. Obviously there are great numbers of women who, for one reason or another, are not able to utilize alternative methods. See Griswold v. Connecticut, 381 U.S. 479, 503, 85 S.Ct. 1678, 1692, 14 L.Ed.2d 510 (1964) (concurring opinion of Mr. Justice White).
. The authority for the idea that the Constitution extends significant protection to a person’s sovereignty over his own body extends back as early as 1891, when the Supreme Court stated:
“No right is held more sacred, [n] or is more carefully guarded * * * than the right of every individual to the possession and control of his own person, free from all restraints or interference of others unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone.’ ” Union Pacific Railroad v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891).
nOr course the right has limits. In facobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1904), for j example, the Supreme Court upheld a ! compulsory vaccination law. The lengths ^ to which the Court went, however, to justify a shot in the arm point up the degree to which personal autonomy is entitled to protection.
. This passage is quoted in Mr. Justice Goldberg’s concurring opinion in Griswold, supra at 550, 85 S.Ct. 1678 and by Mr. Justice Harlan in his dissent in Poe v. Ullman, 367 U.S. 497, 550, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).
. See Part III of this opinion.
. Compare the following excerpt from the cross-examination of Dr. Christopher Tietze, an expert witness in the field of medicine (TR. 14, 2) :
“Q. Dr. Tietze, I do not mean to keep quarreling with you, but you keep referring to a human person and under your definition of a human person, you may well be right. I have asked you in my question with regard to a human being, is the embryo a human being in an earlier state of development of the fetus?”
“A. If you will define, if you are referring, apparently to a human being as something begotten by man and potentially to become man, yes, it would be an early stage of a human being. But this is a very special definition and I think an essential one to the discourse between you and me.”
* * # * *
“Q. It is also fair to say that this zygote is an organism of the same gene structure of a fully-grown, highly complex adult?”
“A. It has the same, yes * *
. Cross-examination of Dr. Christopher Tietze, TR. 4-5:
“Q. Now, with regard to this zygote which is an early embryo, which is an early fetus, in biological terms, would it be not a fair statement to say that this is a human being?”
“A. I think we are getting ourselves, now, into a philosophical question. I would say as a close approximation to my own reaction to this thing — and that is what we all must do, is face philosophical conceptions — that it is a potential human being and I would not refer to the zygote as an early embryo, I would refer to the zygote as a potential embryo.”
* * * * *
“Q. You injected the word philosophical, philosophy, and I ask you from a biological standpoint, isn’t this zygote, this embryo, this fetus a human being?”
“A. I think the term human being, with all of its connotations, extends far beyond biology and is a philosophical con*1237cept. If you ask rue whether the zygote normally in the course of circumstances, with exceptions, will develop into a human being, obviously the answer is yes. Whether this human being meets all of the other qualifications that we attach to this important term, I submit, is not a question of biology * *
* * sfs J{s jfc
“A. * * * To be a human person in any society is something conferred to an individual by his fellow citizens. In some societies, a child was not a human person, in the sense that his parents could do away with him at will * * * I think what we call a human person is an imputed quality, a quality conferred by the society * * Compare the following statement of Mr. Justice Clark:
. Comment, To Be Or Not To Be: The Constitutional Question of the California Abortion Law, 118 U.Pa.L.Rev. 643, 653, n. 60 (1970) (citing J. Noonan, Contraception, 85-87 (1965).
. “ * * * In the ultimate analysis Catholics do not differ from advocates of easy abortion because Catholics hold that a human life is present in the fetus from the earliest moment of its existence. Catholics differ with their opponents rather over the nature and quality of the reasons which can justify an abortion. Utilizing the traditional principles of moral theology Catholic thought justifies at least the termination of an ecoptie pregnancy and the unintended destruction of a fetus when the removal of a uterus is medically required. Catholics therefore should move away from any line of reasoning or species of rhetoric which suggests that the proponents of abortion are advocating homicide. Catholics should delimit the question to the more precise issue involved, namely, the nature of the reasons which can furnish a moral justification for the termination of the existence of the fetus.”
Robert F. Drinan, The Morality of Abortion Laws, Association for the Study of Abortion, Inc., Reprint 1 (1968). (Father Drinan was the Dean of the Boston College Law School, and has just been elected to Congress).
. Concurring opinions of Mr. Justice Goldberg and Mr. Justice White.
. At pp. 634-637, 89 S.Ct. at pp. 1331-1333 the Court analyzes the State’s asserted justifications for the residency requirement for welfare and finds that they are “plainly belied” by the facts (p. 635, 89 S.Ct. p. 1332) and will not “withstand strict scrutiny.” (p. 636, 89 S.Ct. p. 1332)
. “It is basic that no showing merely of a rational relationship to some colorable State interest would suffice; in this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation’ * * (p. 406, 83 S.Ct. p. 1795).
At p. 407, 83 S.Ct. at p. 1795 the Court referred to the “asserted state interest” and concluded that “Nor * * * would the record appear to sustain it.” (emphasis added)
. “It cannot be questioned that the governmental purpose upon which the municipalities rely is a fundamental one. No power is more basic to the ultimate purpose and function of a government than is the power to tax. * * * But governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of the ordinance. When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.” (p. 524, 80 S.Ct. p. 417)
. “Strict scrutiny [of state sterilization law] is essential * *
. Wis.Stat. § 940.04 :
“(1) Any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $5,000 or imprisoned not more than 3 years or both.
(2) Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years:
(а) intentionally destroys the life of an unborn quick child; or * * *
(б) In this section ‘unborn child’ means a human being from the time of conception until it is born alive.” (emphasis added)
. Compare La.Rev.Stat.Ann. § 14:29, entitled “Homicide,” which provides in part:
“Homicide is the killing of a human being * * *.” (emphasis added)
and La.Rev.Stat.Ann. § 14:30, entitled “Murder,” which reads in part:
“Murder is the killing of a human being * * * [with specific intent to kill] * * * whoever commits the crime of murder shall be punished by death.”
. Compare La.Rev.Stat.Ann. § 14:27, entitled “Attempt,” which provides in part:
“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of or tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; * * *
Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment he shall be imprisoned at hard labor for not more than twenty years;
(2) If the offense so attempted is theft or receiving stolen things, he shall be fined not more 'than two hundred dollars, or imprisoned for not more than one year, or both;
(3) In all other cases he shall be fined or imprisoned, or both, in the same manner as for the offense attempted ; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term or imprisonment prescribed for the offense so attempted, or both.”
. The 1942 version of the statute, La.Rev. Stat.Ann. § 14:87, read in pertinent part:
“ * * * (1) Administration of any drug [etc.] * * * to a pregnant female; or
(2) Use of any instrument [etc] * * * on a pregnant female, * * * ” (emphasis added)
. “Whoever shall feloniously administer, or cause to be administered, any drug, potion, or any other thing, to any woman for the purpose of procuring a premature delivery, or whoever shall administer, or cause to be administered, to any woman pregnant with child, any drug, potion, or any other thing, for the purpose of procuring abortion or a premature delivery, or whoever by any means whatsoever shall feloniously procure abortion or premature delivery, shall be imprisoned at hard labor for not less than one nor more than ten years.” (emphasis added)
. La.Kev.Stat.Ann. § 14:80-89.
. La.Rev.Stat.Ann. § 14:29-50.
. La.Rev.Stat.Ann. § 14:88.
. “We call your attention to Act 95 of 1920, [the predecessor of the present Abortifacient Statute, note 19 supra] which is an Act to prohibit the printing or publishing of an advertisement of any secret drug for the use of females for the procurement of abortion or prevention of conception * * * We are therefore of the opinion that birth control in any form would fall within the criminal statutes now in force in this state.”
Op.Atty.Gen. of La. 128, 129 (1932-1934). See also Ops.Atty.Gen. of La. 73 (1934-1936) ; Comment, 23 La.L.Rev. 773, 775 (1963).
The framers of the 1942 Criminal Code were aware of this interpretation of the law at the time they re-enacted it, see Morrow, The Louisiana Criminal Code of 1942 — Opportunities Lost and Challenges Yet Unanswered, 17 Tul.L.Rev. 1, 22 (1942) (Morrow was one of the principal reporters of the Code).
. H. L. A. Hart has distinguished between “public” and “private” morality in the criminal law. “Public” morality involves actions that are harmful independent of their repercussion on the general moral code. Rape is an example. “Private” morality involves actions that are not harmful to others but offensive to prevailing (or sometimes not so prevailing) moral feelings. Examples are fornication or consenting homosexuality. As Hart puts it, a particular practice violates private morality “if the thought of it makes the man on the Clapham omnibus sick.” 62 Listener 162, 163 (July 30, 1959).
In John Stuart Mill’s view government has no business enacting private morality into the criminal law:
“The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”
On Liberty.
The British government has adopted Mill’s position. See Report of the Committee on Homosexual Offenses and Prostitution (Wolfenden Report) 9-10, 20-21, 24, 79-80 (1957). So has the American Model Penal Code, see Tentative Draft No. 4, Comments to Article 207, Sexual Offenses. In the United States, however, courts often affirm — almost always in dictum' — the propriety of statutes against fornication, etc. See e. g., Griswold v. Connecticut, 381 U.S. 479, 498-499, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (concurring opinion of Mr. Justice Goldberg). But where fundamental rights are involved, as they are in this case, private morality alone cannot justify their abridgment:
“The mere assertion that the action of the State finds justification in the controversial realm of morals cannot justify alone any and every restriction it im*1241poses.” Poe v. Ullman, 367 U.S. 497, 545, 81 S.Ct. 1752, 1778, 6 L.Ed.2d 989 (1961) (dissenting opinion of Mr. Justice Harlan). See also Baird v. Eisenstadt, supra.
. Both parties seek to show the State’s interest or lack of it in the fetus by pointing to various succession laws. One statute, for example, says that children in the womb are considered as already born and that an inheritance may “devolve” to them before their birth. La.Civ.Code Ann. Art. 29. See also La.Civ.Code Ann. Art. 954. But the right to inherit does not vest unless or until the child is “born alive,” La.Civ.Code Ann. Arts. 956-957, and “children born dead are considered as if they had never been born or conceived.” La.Civ.Code Ann. Art. 28.
In my view the succession laws are of doubtful relevancy to the abortion statute; at any rate they are too contradictory to support the argument of either party.
. State of Louisiana v. Sharp, 248 La. 865, 182 So.2d 517 (1966); State of Louisiana v. Pailet, 246 La. 483, 165 So.2d 294 (1964); State of Louisiana v. Dore, 227 La. 282, 79 So.2d 309 (1955); State of Louisiana v. Mauvezin, 136 La. 746, 67 So. 816 (1915).
Compare the “Gambling” statute, La. Rev.Stat.Ann. § 14:90, under which there have been at least 50 reported prosecutions. “Sodomy” (Abortion’s bedmate in the Code) has even resulted in a greater number of reported prosecutions.
. The absence of reported cases is not the only evidence of failure to prosecute the physician:
“The lack of enforcement was noted in 1868, H. Storer & F. Heard, Criminal Abortion 136-147 (1868), and has continued to the present, see L. Lader, Abortion 70-73 (1966) ; Ziff, Recent Abortion Law Reforms (Or Much Ado About Nothing) 60 J.Crim.L.C. & P.S. 3, 8 (1969).” 118 U.Pa.L.Rev. 643, 657, n. 87 (1969).
Speaking of the considerations that Dr. Belous might have weighed in deciding whether or not to perform an abortion in California one writer could blithely conclude “Considering the fact that the possibility of criminal prosecution and loss of practice is rarely realized. * * * ” Id.
And here in Louisiana Professor C. J. Morrow, to whom defendants refer in their brief as “one of the principal redactors of the Criminal Code,” has observed as a fact what the lack of reported prosecutions reflect:
“It is common hnowledge that abortions of all types are performed every day, and that there are no criminal prosecutions. This is true because there is obviously common popular acceptance of the practice, in spite of the theoretical disapproval in some quarters. However the tremendously unfortunate aspect of the situation is that under the present state of the law doctors are forced into either open defiance of the positive law in what they deem to be justifiable cases, or into clandestine practice under substandard conditions." Morrow, The Louisiana Criminal Code of 1942 — Opportunities Lost and Challenges Yet Unanswered, 17 Tul.L.Rev. 1, 22 (1942) (emphasis added).
. Compare the child battering cases. One of the reasons heavy penalties sometimes are not imposed is to encourage the child batterer to seek medical help for the child. Thus low penalties are no indication that the crime is taken lightly but rather that the need to protect the welfare of the child is balanced against the need to punish the child batterer. In the situation where the mother aborts herself, however, if any balance is struck it is struck in favor of the mother, not the child.
. But see defendant’s brief: “Plaintiff also argues that the statute prohibiting abortions forces women to take ‘coat hangers and knitting needles’ * * * and that this could be corrected by repealing or holding the statute unconstitutional. It is argued that forcing women to go to unskilled abortionists is more of a danger to their health. This is a specious argument. It is neither necessary nor proper for society to remove obstacles that are in the way of the criminal in order to make it easier to ‘ commit the crime.” (emphasis added)
. Gold, Erhardt, Jacobziner & Nelson, Therapeutic Abortions in New York City: A Twenty Year Review, 55 Am.J.Pub. Health 964 (1965) ; see also Note, Abortion and the Law: A Proposal for Reform in Louisiana, 43 Tul.L.Rev. 834, 836-837 (1969) :
“Because the demand for abortion cannot be met within the existing legal framework, illegal means are increasingly employed. For an affluent woman, able to pay a fee of $300 to $600, skilled physicians willing to work outside the law are available. [Citing Time, vol. 90, Oet. 13, 1967 at 33] Indeed in Miami alone abortionists collected $20,-000,000 for their services in 1967 * * * [citing Time, supra].
Since hospital abortions are generally unavailable to precisely those persons who are unable to afford the expensive and illegal private abortions the less affluent are forced to resort to the unskilled. [citing L. Lader, Abortion (1967)] Obviously the greater proportion of the more than 1,000 deaths annually due to abortions [citing Time, supra] occur among these expectant mothers. However, the annual death toll is only a small part of the social cost of such a system. To the death toll must be added thousands of women crippled by infection, thousands whose sexual organs are damaged so that they are unable to achieve normal sexual satisfaction, and thousands rendered irreversibly barren [citing Time, supra]. These, then, are the results of the prevailing American solution to the problems posed by abortion.”
. “And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control * * *. In my view, a statute with these effects bears a substantial burden of justification when attacked under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 * * * Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, [86 L.Ed. 1655] * * (emphasis added) (concurring opinion of Justice White)
. “ * * * strict scrutiny * ♦ * is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guarantee of just and equal laws. * * * ” (emphasis added).
. “[The State] says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extra-marital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth control devices * * (concurring opinion of Justice Goldberg).
. “But, as might be expected, we are not presented simply with this moral judg*1245ment to be passed on as an abstract proposition. The secular state is not the examiner of consciences : it must operate in the realm of behavior of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done. The moral presupposition on which appellants ask us to pass judgment could form the basis of a variety of legal rules and administrative choices, each presenting a different issue for adjudication.” Mr. Justice Harlan, dissenting, Poe v. Ullman, 367 U.S. 497, 547, 81 S.Ct. 1752, 1779, 6 L.Ed.2d 989 (1961).