Dissenting Opinion
DeBruler, J.There seems little point in writing in dissent to the decision of the majority on the standing issues presented by this appeal. The majority has decided to address itself to the merits of each of appellant’s claims in support of her contention that the abortion statute is unconstitutional, and therefore, I will do so also.
I do not agree with the resolution made by the majority, of the appellant’s claim that the abortion statute constitutes such an infringement upon the rights of women to privacy and to basic liberty, as to be in contravention of the due process of the Fourteenth Amendment to the United States *152Constitution. I agree with the majority in its determinations that the statute is not void for vagueness under the Due Process Clause, and that it is not void as violative of the Equal Protection Clause. I would, however, re-emphasize the narrowness of the equal protection claim made here, and the inadequacy of the record in this case to support any such claim. The equal protection claim rests solely on the inability of a poor woman, because of a lack of money, to travel to another state or foreign country, to obtain an abortion while her wealthy counterpart is able to do so. The constitutional issues were raised by a one line motion to quash with short conclusory supporting memorandum attached. No evidence, statistical or otherwise, has been offered to buttress the argument. Hardin v. State (1970), 254 Ind. 56, 257 N. E. 2d 671.
The majority opinion focuses upon the nature of the interest of the State in protecting fetal life reflected in this statute. While it fully develops this interest of the State, it is deficient in describing the true nature and quality of the fundamental right to privacy and liberty which is here being asserted against this statute on behalf of pregnant women. A full consideration of what is at stake for the pregnant woman who is denied an abortion by this statute as well as a full consideration of the interest of the State in denying that abortion are necessary to a decision in this case. Both are necessary because we must decide not only that the State has a compelling interest in protecting fetal life, but we must also decide that the means chosen by the Legislature are both rational and necessary and that if those means infringe upon a fundamental constitutional right, we must determine whether alternative means exist which will equally serve that end and which are less destructive of the fundamental right. The proper view of our function in reviewing this claim made on behalf of pregnant women is stated in Shelton v. Tucker (1960), 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231, as follows:
“In a series of decisions this Court has held that, even though the governmental purpose be legitimate and sub*153stantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purposes.” 364 U.S. at 488.
See also N.A.A.C.P. v. Alabama (1958), 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488.
That same view of the function of judicial review in sensitive areas involving fundamental rights was adopted by this Court in a right to privacy case in 1947, wherein this Court said:
“Granting that the citizen has ... a right ... to privacy and protection as guaranteed him by the constitutional provision quoted, these rights must be made to harmonize with the rights of the people collectively to life, liberty, safety and the pursuit of happiness likewise guaranteed by the constitution. Between these rights there is sometimes an apparent conflict. It is the duty of government in so far as possible to avoid this conflict and to provide a way of life and safety that will protect both rights." (Emphasis added.) State ex rel. Mavity v. Tyndall (1947), 225 Ind. 360, 364-365, 74 N. E. 2d 914.
See also Board of Zoning Appeals v. Decatur, Indiana Co. of Jehovah’s Witnesses (1954), 233 Ind. 83, 117 N. E. 2d 115. This is the procedure which I would follow in deciding this case.
In my view of this case, the fundamental, personal right of privacy and basic liberty is here being asserted on behalf of pregnant women. It is contended that this right is being infringed by the abortion statute, and that this infringement denies to women that “liberty” protected by the Fourteenth Amendment, and that the statute consequently is unconstitutional. The Fourteenth Amendment provides: *154This “liberty” protected by the Fourteenth Amendment has been held to be the same “liberty” given expression in the Preamble to the United States Constitution. Jacobson v. Massachusetts (1905), 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643. In that case “liberty,” while susceptible of regulation by law, was considered to be “the greatest of all rights.” A general description of, and attitude toward this right was put as follows in Meyer v. Nebraska (1923), 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 2d 1042:
*153“No state . . . shall deprive any person of life, liberty, or property, without due process of law.”
*154“Without doubt, it [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those ■ privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. at 399.
Liberty is a basic civil right and is fundamental to the existence and survival of the race, and includes the right to marry and to procreate. Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655. It includes the right to satisfy one’s intellectual and emotional needs in the privacy of one’s home. Stanley v. Georgia (1969), 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542. It partakes of the right to travel freely and without arbitrary governmental restriction. U.S. v. Guest (1966), 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239. It protects the right each of us has in the protection and maintenance of his health. Kraus v. City of Cleveland (1953), 55 Op. 6, 116 N. E. 2d 779. It even provides constitutional protection for such personal choices as the style of one’s hair, whether to wear a beard or mustache. Karr v. Schmidt (1970), 320 F. Supp. 728.
The right to privacy and basic liberty has been given additional concreteness, most relevant here, in Griswold v. Connecticut (1965), 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, and Eisenstadt v. Baird (1972), 405 U.S. 438, 92 S. Ct. *1551029. Specifically involved in those cases was the right of persons to receive distribution of contraceptives. The right to obtain contraceptives carries with it the private right of the individual to decide when to use the devices, and when he shall forego using them, and this in turn gives rise to the private right to decide when an act of intercourse will be carried out for the purpose of satisfying one’s own emotion and physical needs, and when it shall be done for the purpose of reproduction. The Court described the right there asserted in the following language:
“If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Emphasis added.)
These cases serve to identify the nature and perimeters of the right here pleaded on behalf of pregnant women, which right it is contended is infringed by the statute prohibiting abortions. It is obvious to me that the right to privacy and basic liberty is that enormous reservoir of freedom in which each of us daily maneuvers and makes choices, relatively free from governmental intrusion. Much of this freedom we take for granted. We have little reason to contemplate the periphery of this freedom. We have no need to invoke the protection of the Constitution in order to freely make routine daily decisions relating to such matters as eating, sleeping, buying, selling, saving, spending, going, coming, talking, breathing, walking, riding, looking, wearing, cooking, reading, working, playing, bearing and begetting. Surely no one would disagree with the conclusion that the basic liberty of a pregnant woman, that is, the reservoir of freedom in which to make choices, is substantially reduced by her pregnancy. For the sake of brevity, I call upon the reader to fairly contemplate the impact upon a woman and the family interests she represents, of a pregnancy, delivery, and receipt of a physically and legally dependent child. Cases of extreme hardship involving *156real danger to the women’s health, pregnancy by rape, and financial disaster, and many more come readily to mind. Suffice it to say that the stake of the pregnant woman in the abortion decision is great, as great as her life and health, and the health of her family.
I accept the description of the interest of the State in protecting fetal life made by the majority. This interest is great. The stake of the State is the stake that all of us has in the maintenance of a society in which human life is considered the greatest value and in which no man can grow so sick, so useless, or so evil that his life can be extinguished against his will. The State clearly has a legitimate and even compelling interest in legislating in the abortion area, and governing the abortion decision. However, the identification of this State interest and its characterization as compelling cannot serve as a basis of decision here.
By this statute, enacted in 1905, the State has declared its absolute indifference to the basic liberty of pregnant women. It prohibits all abortions, except in cases where death will certainly result to the pregnant woman if the abortion is not performed. And since the statute permits a legal abortion to be performed only where death is a certainty, a pregnant woman denied an abortion by this law, must run the risk of dying when that risk is not a certainty, but only a middle range probablity. Once pregnant, she is mandated in service of the State to hazard the risks of pregnancy and delivery, no matter what the degree of risk to her own health might be, and even though she may be involuntarily pregnant as the result of a rape. And after assigning her these burdens, this statute gives no form or degree of remedy or recognition to her person, her suffering, or any of her needs, be they physical, mental or even financial. It is this complete failure of the statute to minimize the violation of the woman’s fundamental right that condemns this statute.
J would, therefore, hold in this case that this statute is *157unconstitutional because it impermissibly and unduly invades and restricts women’s right to privacy and basic liberty, guaranteed by the Due Process Clause of the Fourteenth Amendment.
Note.—Reported in 285 N. E. 2d 265.