(concurring in part and dissenting in part):
I join with the majority in invalidating as unconstitutional certain sections of the Act, designated herein. Other provisions, however, clearly appear to be constitutional and not affected by a damaging interrelationship with a tainted section. As to these I respectfully dissent from the majority’s action believing that established principles governing severability and judicial scrutiny of legislative intent require a contrary ruling. These principles are explained in Dorchy v. Kansas, 264 U.S. 286 when at pp. 289-290, 44 S.Ct. 323, 324, 68 L. Ed. 686 (1924) the Court stated:
A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.
The Act in question complies with these requisites. Certain of its provisions are constitutional and severable. It clearly appears from section 320 that the Legislature intended the valid provisions to stand, and that they could stand without doing violence to their manifest intent. If certain provisions are constitutional, but there is concern regarding whether applicable state law permits severing the sections, the proper result would seem to be to allow the state court to decide the issue. Morey v. Doud, 354 U.S. 457, 470 n. 16, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). There the Court *200noted that severability is a question of state law.
It would seem that examination of legislative motives should not properly result in the invalidation of the whole Act. “But a judiciary must judge by results, not by the varied factors which have determined legislators’ votes. We cannot undertake a search for motive in testing constitutionality.” Daniel v. Family Security, 336 U.S. 220, 224, 69 S.Ct. 550, 552, 93 L.Ed. 632 (1948). Justice Harlan in his dissent in Baker v. Carr, 369 U.S. 186, 337, 82 S.Ct. 691, 775, 7 L.Ed.2d 663 (1962) stated:
Since Fletcher v. Peck, 6 Cranch. 87, was decided many years ago, it has repeatedly been pointed out that it is not the business of the federal courts to inquire into the personal motives of the legislators.
I concur with the majority in striking the following sections: part of 303, and all of 304, 305, 307, 308, 309, 311, 314, and 316. For reasons now to be g'iven I dissent from invalidating 302(3), part of 303, and all of 306, 310, 312, 313 and I will comment on other provisions of the Act.
Section 302(3)
Section 302(3) provides that abortions are permissible “[i]f performed when the fetus is sufficiently developed to have any reasonable possibility of survival outside its mother’s womb, the abortion is necessary to save the life of the pregnant woman or to prevent serious and permanent damage to her physical health.” I agree with Chief Judge Lewis that 302(3) may be rendered constitutional and serve as the basis of an act by severing the word “physical.” This section is challenged as an unconstitutional limitation on the woman’s relatively unencumbered right to terminate a pregnancy during approximately the first and second trimesters of pregnancy. It is also challenged as being overbroad in the sense that it limits the factors to which the physician may look in determining the medical advisability of an abortion during the period of viability to the physical health of the pregnant woman, rather than permitting an evaluation of other health factors as well.
The first of these objections is easily met. The requirements of section 302(3) apply only if the abortion “is performed when the fetus is sufficiently developed to have any reasonable possibility of survival outside its mother’s womb.” This language is essentially synonymous with the Court’s definition of viability. Roe v. Wade, supra, 410 U.S. at 160, 93 S.Ct. at 730. That definition is: “. . . potentially able to live outside the mother’s womb, albeit with artificial aid.” By its own terms, therefore, 302(3) applies only to the portion of the gestation period following the point in time at which the fetus becomes viable, or during approximately the third trimester. It is not, therefore, unconstitutional as an impermissible regulation of the woman’s right to terminate her pregnancy during approximately the first or second trimesters.
The second objection to 302(3) is more troublesome. The considerations governing abortions during the period of viability are described in the words of the Court as follows:
For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.1 (Emphasis added.)
The Court’s starting point is its own prior interpretation of the word “health” in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971). There the Court interpreted “health” to mean both a patient’s mental and physical state; that is, psychological as well as physical well-being.2 The *201Court held that when viewed in this light the term “health,” as contained in the District of Columbia statute, presented no problem of vagueness, Vuitch, supra at 71-72, 91 S.Ct. 1294. In Doe v. Bolton, supra, 410 U.S. at 192, 93 S.Ct. at 747, this interpretation was broadened to include other factors.
We agree with the District Court that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age —relevant to the well-being of the patient. All these factors may relate to health. This allows the attending "physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.3
It thus becomes clear that the physician, in arriving at a medical or clinical judgment regarding the advisability of an abortion before viability, is free to inquire with his patient into all relevant matters, mental, emotional, and physical embodied in the concept of health. Such a rule allows the physician during this period, in deference to his professional abilities, to exercise independent judgment and to determine whether or not she should terminate her pregnancy. The court is consistent in using the same terms, in reference to health throughout the entire period of pregnancy. Thus, the term “health,” as applied by the Court to the period after viability, approximately the third trimester, should be defined in the same manner as it is for the period before viability.
Therefore, because the adjective “physical” limits the factors relevant to the physician’s determination of the woman’s health, it should be omitted. The remaining restrictions imposed by section 302(3) are valid. They are severable and should be given effect. Such a provision, restricting abortion after viability to situations where it is necessary to preserve the pregnant woman’s life or prevent serious and permanent damage to her health, would be constitutional.
The Court specifically repudiates the assertion that there should be abortions upon demand. In Roe v. Wade, supra at 410 U.S. 153, 93 S.Ct. at 727 it stated that:
. [Ajppellants and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, and in whatever way, and for whatever reason she alone chooses. With this we do not agree.
The Court’s opinions in Roe and Doe placed great faith in the integrity of the physician. Up until the point of viability he has discretion in the context of his medical and clinical judgment to prescribe abortions. However, the state, by virtue of its compelling interest in the woman’s health, may enact health regulations to protect the woman during the second trimester.
After viability, however, the state’s interest in protecting the fetus becomes compelling and at this point the state may prohibit abortions except where necessary to preserve the life or health of the woman. Roe, supra, 410 U.S. at 165, 93 S.Ct. 705.
In analyzing the approaches taken by the other courts in recént abortion cases, the Supreme Court summarized as follows in Roe, supra at 165-166, 93 S.Ct. at 733:
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state in*202terests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where state interests provide compelling justifications for intervention. (Emphasis added.)
Thus, as the period of the pregnancy lengthens the state may act to protect its compelling interests. As these compelling interests materialize, a greater showing of necessity is required in the light of all factors bearing on the patient’s health, before allowing an abortion to be performed.
The physician, in the exercise of his best clinical judgment, must balance the factors weighing in favor of an abortion with those factors weighing against an abortion. He must weigh the threat to the woman’s life or the threat of serious and permanent damage to her health because of childbirth against 1) the greater physical risk to the woman caused by an abortion at the later stages of pregnancy 4 and the possible psychological and emotional harm to the woman as a result of the abortion — the compelling state interest in protecting the woman’s health' — and 2) the compelling state interest in protecting the life of the fetus. Thus thq woman’s need for an abortion would have to be balanced against and outweigh two compelling state interests: the interest in protecting the woman’s health and the interest in protecting the life of the fetus.
The burden of decision on the doctor is thus substantially greater at this juncture and under the restrictions of this section would serve to “proscribe” the performance of abortions after viability as the Legislature apparently intended.
The statute properly requires the physician to determine whether childbirth would pose a threat of serious and permanent damage to the woman’s health. Temporary conditions or factors of slight magnitude when compared with the other interests involved will obviously not suffice. Thus, for example, speculation that the birth of the child will bring upon the woman “a distressful life,” or create “inconveniences,” would not be extensive or durable enough to justify the extinguishing of potential life.
Section 303
To accompany 302(3) the last part of 303 should be severed and saved, as follows:
“. If the abortion is performed 180 days or more after the commencement of pregnancy, such medical reason shall be sufficient if in the attending physician’s best clinical judgment the abortion is necessary to save the life of the pregnant woman or to prevent serious and permanent damage to her health.”
Stricken from this part of 303 is the requirement that the physician obtain the concurring approval of two other physicians for any abortion performed after viability. The similarity between this requirement and the one struck down by the court in Doe v. Bolton, supra requires, for the reasons given by the Court in Doe, the conclusion that this provision is invalid. The deletion of “physical” here would make 303 correspond with 302(3) as changed above and for the reasons stated there. Retaining “180 days” would prevent uncertainty concerning when these provisions take effect.
Section 30k
Neither Roe nor Doe considered whether, “in the constitutional context” the father has any rights concerning the abortion decision. Roe v. Wade, supra, 410 U.S. 165 n. 67, 93 S.Ct. 705. Apparently the Utah Legislature enacted section 304 in an attempt to assert that others, besides the pregnant woman, have rights affected when an abortion *203occurs. This section not only requires the consent of the father, if he can be located, but also that of the woman upon whom the abortion is to be performed and, if the woman is unmarried and under 18 years of age, the parents or guardian of such woman.
Because section 304 cannot stand by itself, but is inextricably tied to section 305 which this court has determined to be invalid, section 304 must also fall. By invalidating 304 the merits of the consent requirements are not reached. The necessity of the woman’s consent is obvious, but the remaining problems of consent raised by various provisions of section 304 are not easily resolved.
Parents ■ and fathers, especially husbands, have well recognized interests in the family unit. In the distressful circumstances often associated with the abortion decision, family advice and counseling, a skill in which many physicians are not trained, may be more important than the purely medical diagnosis. Particularly where the patient is a pregnant, unwed minor child the proposition that the child’s parents should have to be consulted in deciding whether an abortion is necessary finds a great deal of support in the general law applicable to the relationship between the minor, her parents, and society. A further question is whether a father, particularly a husband, has rights entitled to consideration.5 However, under present circumstances the right of the woman is one that the Court has deemed to be fundamental, and lesser interests or rights themselves deemed fundamental in another context may not be allowed to interfere or impose an undue burden upon the woman’s right of privacy.
Section 305
In section 305 the Legislature has apparently endeavored to give the consent
provision discussed above the fullest effect possible. It has required a judicial hearing before any abortion is performed, except under the circumstances described in section 319. At the hearing the county attorney must be present, determination must be made by a state judge as to whether the consensual agreements were voluntary, and whether both the father and mother have been fully informed of certain matters bearing upon the quality of their respective personal decisions to procure or consent to an abortion. The mother must also be advised of possible civil' liabilities which might be incurred.
The Court’s opinions in the abortion cases render unavoidable the conclusion that the regulation imposed upon the abortion decision by the terms of 305 constitutes a substantial state interference of a nature which the Court considered impermissible. By Court standards the requirements of this section would effectively inhibit the woman’s exercise of her right of privacy to an unacceptable degree. Ensuring the efficacy and voluntariness of the consent may be legitimate and proper, but these provisions go beyond that which might reasonably be required for this purpose. Therefore, section 305 is invalid as measured by the standards of Roe and Doe.
Striking down section 305 does not mean that some of the apparent purposes of this section are not salutary. For example, the effort made to inform the woman of the availability of adoptive parents, and their willingness to pay the expenses involved in the adoption proceedings, are particularly commendable. Such provisions serve to aid the woman in making an informed exercise of her rights, and if such information were presented in a manner that does not burden the exercise of the right, it would seem to be. permissible.
*204 Section 306
Section 76-7-306 is similar to section 26-1202(e) of the Georgia Criminal Code which was examined by the Court in Doe v. Bolton, supra. In Doe the Court upheld a provision essentially identical with 306(2) of the Utah statute stating that “[n]othing shall require a hospital to admit any patient under the provisions hereof for the purposes of performing an abortion. . . .” The Court also upheld the right of individuals to refuse to participate in the abortion procedure “for moral or religious reasons.” 410 U.S. 197-198, 93 S.Ct. 739.
The Legislature’s action in enacting a provision granting “a hospital” the right to refuse to perform abortions and then enacting seemingly repetitive additional subsections granting “private and denominational hospitals” similar rights is somewhat unusual. Ostensibly the term “a hospital” includes private and denominational as well as public institutions. The Court’s consideration of this problem in Doe was somewhat abbreviated and incomplete. Perhaps the drafting of this section was an effort by the Legislature to provide for the possibility that the holding of Doe on this point may at some time in the future be restricted, but whatever the reason, the legislative motive is irrelevant.
306(1) and 306(4) do nothing more than protect the conscience of the individual and the prerogative of the denominational hospitals. In accordance with the explicit discussion of the Court in Doe, these subsections are constitutional.
As to subsections 306(2) and (3), there are not enough facts before the court. Thése provisions do not deny plaintiff her constitutional right simply because hospitals are free to prohibit or permit abortions. If a less speculative fact situation indicates that public hospital policies are unduly hampering the exercise of this protected right, appropriate relief could then be granted. Hathaway v. Worcester City Hospital, 475 F.2d 701 (1 Cir. 1973).
The plaintiff contends that hospitals identified with the state to the extent that their activities constitute state action should not be permitted to refuse admittance to abortion patients. Such a determination might unduly interfere with state hospital policies much more than is necessary in order to adequately protect plaintiff’s rights. Research centers, hospitals providing only specialized treatment, and hospitals without facilities to perform the required procedures would be obliged, if relief were granted on the basis of a finding of state action alone, to accept abortion patients. Therefore, a determination of the latitude hospitals can have in this area should await a more specific fact situation where the burden on the protected right and the justification for the policy decision are more clearly presented.
Section 310
This section requires the physician to use all of his medical skills to save the life of “any fetus sufficiently developed to have any reasonable possibility of survival outside its mother’s womb.” The quoted language fairly limits the application of this section .to abortion operations performed after the fetus has become viable. Therefore, abortion to which 310 applies is one instituted in the first instance to save the life of the mother or to prevent serious and permanent damage to her health. Utah Code Ann. §§ 76-7-302(3) and 319 (Supp. 1973). It is illogical to expect that in carrying out an abortion for the purpose of saving the mother’s life the physician should be required to engage in a procedure which would endanger her life. Such could not have been the intent of the Legislature. Section 310 is valid because the reasonable construction requires only that the physician use his best skills to promote the life of the fetus in the context of saving the mother’s life, which is his first 'and primary con*205cern. However, if the physician is faced with alternative methods of performing the abortion, his selection of methods should be based on his consideration for the woman’s health. If the alternatives do not endanger the woman’s health, and one method, is safer for the fetus than the other methods, the safer method should be employed regardless of expense, time or effort on the part of the physician performing the abortion.
Section 312
This section, concerning experimentation with live fetuses, has not been challenged. It is not interrelated with any tainted section and should stand.
Section 313
Although perhaps not carefully drafted, the soliciting and advertising prohibitions of section 313 were designed to prevent doctors or others from unethical importuning and from unduly commercializing this aspect of medical practice. Despite the action of the majority in striking down this section, physicians remain barred from such practices by Utah Code Ann. § 58-12-36 (Supp.1973) and the code of ethics of their profession. The activities of others, by virtue of this decision, are not now subject to regulation, although the state has authority to do so in the commercial context. Pittsburg Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). The above provision, along with the remaining aspects of section 313 prohibiting the buying and selling of fetuses as well as offer of the same, did not impinge upon the plaintiff’s rights and should have been found constitutional.
Other Sections
If by the action of the court a constitutional act were being preserved, then consideration might also be given to the significant aspects of other sections. Under the present circumstances comment on these sections does not seem necessary.
. Roe v. Wade, 410 U.S. 113, 164-165, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973).
. The District of Columbia statute under review in Vuitch, and likewise the Supreme *201Gourt’s interpretation of the word “health” contained in that statute, apparently applied to the entire gestation period.
. Conditioning the existence of a protected right upon the amount of medical knowledge available at the time of the decision seems to be highly anomalous. See Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 942 n. 117 (1973).
. Roe, supra at 150.
. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); cf., Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). It is possible that other parties in ‘addition to the pregnant woman and the state have an interest in the abortion decision. The recognizing of such rights in the father and the parents of an unwed minor would require that their interests be considered.