Abele v. Markle

NEWMAN, District Judge

(concurring in the result):

I fully agree with Judge Lumbard’s conclusion that the plaintiffs are entitled to a judgment declaring the Connecticut abortion statutes unconstitutional, but my reasons for reaching that conclusion cover somewhat less ground. Moreover, having found the statutes unconstitutional, I would grant plaintiff Doe injunctive relief.

I

The essential contention of plaintiff Doe is that the Connecticut abortion statutes unconstitutionally invade her privacy in matters of family and sex. While the Constitutional basis for this claim is imprecise, there can be no doubt after Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), that the Supreme Court recognizes a Constitutionally protected zone of privacy in these matters, founded on either the Ninth Amendment1 or the “penumbras” of the First, Third, Fourth, Fifth and Ninth Amendments as incorporated by the Fourteenth Amendment2, or the concept of liberty protected by the Fourteenth Amendment alone 3.

Having recognized a right to privacy in family and sexual matters, however, the Court has not created an immunity against all state regulation of these subjects. Rather the Court has required the demonstration of a subordinating state interest sufficient to justify the invasion of privacy. Before there can be consideration of whether the state interest does justify the invasion of privacy, there must be a determination of what state interest is being advanced by these statutes.

In this case the State suggests the 1860 General Assembly, which enacted the statutes here challenged, was seeking to advance three state interests: protecting the health of the mother, protecting the morals of the mother, and protecting the life of the unborn child. Determining whether these were the state interests is not an easy task, because of the paucity of relevant materials. These statutes contain no legislative findings, nor are there available legislative committee hearings or reports, or floor debate. Since ascertainment of the state interest is an important step in determining whether or not the state may invade an area of personal liberty entitled to a high order of protection, the inquiry as to what state interest was being advanced by the 1860 General Assembly must proceed with some caution, and a clear demonstration of the requisite state interest should be required. Consideration must be given to (a) the evils that were perceived as requiring legislation in 1860, (b) the background of the Connecticut statutes, (c) the text of the statutes, (d) relevant judicial interpretation of these statutes, and (e) contemporary materials from other states pertinent to the same type of statutes.

(a). A scholarly analysis of Nineteenth Century abortion legislation by *806Professor Cyril C. Means, Jr. has outlined solid evidence for concluding that the major evil perceived at the time that was posed by an abortion was the risk to the health and life of the mother4. With Lister’s pioneering article on antiseptic surgery not published until 1867, abortions performed before that date, even under the best of then known medical practices, created grave risks for the health and life of the mother. There can be no doubt that this was an evil known to and appreciated by the Nineteenth Century legislators. Whether they were concerned about protecting the morals of the mother is uncertain. Professor Means finds no evidence of this concern in his review of contemporary materials 5. Protecting the life of the unborn child was certainly of concern to some Nineteenth Century thinkers. Although some did not accept a meaningful concept of life until birth, there was substantial support for both the principle of mediate animation and immediate animation at conception6. To what extent these views were held by legislators of that Century is most uncertain. While there is evidence that in some states they regarded a quickened fetus as a life entitled to legal protection 7, there is inadequate evidence to gauge their assessment of an unquickened fetus.

(b). Early Connecticut statutes prohibited any person from administering any poison (1821) and later administering any medicine or using any instrument (1830) with intent to cause the miscarriage of a woman quick with child 8. Prior to 1860, it was not a crime in Connecticut for a woman to cause her own miscarriage. The statutes challenged in this suit were enacted in 1860 9. A mother’s doing or suffering anything to be done with intent to produce a miscarriage or abortion was prohibited, the “quick with child” limitation of prior law was eliminated, and an exception *807was created for an abortion necessary to preserve the life of the mother or the unborn child. Apparently the 1860 legislation was a response to a resolution of the American Medical Association adopted at its 1859 convention. 12 Transactions of the A.M.A. 27 (1859). That resolution ui'ged that all state legislatures be memorialized to revise their abortion laws to help curtail the rising incidence of abortions. At the 1860 session of the Connecticut General Assembly, the memorial of the A.M.A. was referred to the Judiciary Committee, whose report recommended that the “pirayer of the memorial” be granted and that an accompanying bill be enacted. 15 Conn. House Journal 510 (1860). That bill became the abortion legislation of 1860, and is now, with minor wording changes, Sections 53-29, 53-30 and 53-31 of the Connecticut General Statutes. One phrase from the A.M.A.’s resolution stated that the organization' was protesting “against such unwarrantable destruction of human life.” That this referred to the unborn child, rather than the mother, is made clear by the report of the A.M.A. committee which prepared the resolution. 12 Transactions of the A.M.A. 77 (1859). However, there is no evidence that the A.M.A. committee report ever came to the attention of the Connecticut legislature. Nor do the legislative journals or contemporary newspaper reports (see Hartford Courant, June 23, 1860, p. 2) indicate whether the General Assembly was accepting the thinking that underlay the A.M.A. resolution or was simply responding to the A.M.A.’s call to make abortion laws more comprehensive. The latter action could have been taken for the purpose of protecting either the mother or the unborn child. Legislative response to a resolution of the A.M.A. seems more likely to reflect a medical than a metaphysical purpose.

(c). The text of the 1860 statutes provides only slight guidance as to the state interest being advanced. There is perhaps some significance in the fact that the statutes do not define as a crime taking the life of an unborn child. Compare Wis.Stat. § 940.04, which punishes one who “destroys the life of an unborn child.” Section 53-30 penalizes a woman “who does or suffers anything to be done, with intent thereby to produce upon herself miscarriage or abortion.” The statutory crime is complete even if no harm is done to the unborn child. This at least suggests that the statute may be concerned with what an abortion does to a mother, not what it does to a fetus. The statutory penalty may also offer a clue. Of course the setting of penalties is normally a matter within a legislature’s discretion, but the amount of penalty established is at least one indication of the purpose the legislature had in defining the crime. The maximum penalty for violating Section 53-30 is two years, compared to the ten-year penalty for manslaughter in 1860 10. Two years is a remarkably low penalty if the crime it punishes is the intentional taking of a life. Such a penalty is more consistent with a purpose to protect health or morals. In a related context, the Supreme Court has recently placed great reliance on statutory penalties in determining statutory purpose. Eisenstadt v. Baird, 404 U.S. -, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). The fact that the 1860 statutes eliminated the “quick with child” limitation does not determine purpose; the reason could as easily have been more comprehensive protection of all mothers as all fetuses.

(d). Only one decision of the Connecticut Supreme Court, State v. Carey, 76 Conn. 342, 56 A. 632 (1904), sheds any light on the purpose of the Connecticut abortion statutes, but it is especially instructive. The issue in Carey was whether the trial court had erred in failing to instruct the jury in the trial of an abortionist that the testimony of the consenting mother should be considered with the caution normally applied to the testimony of an accomplice. Resolution of this question required the court to make several observations about the pur*808poses of Section 53-29, punishing the abortionist, and Section 53-30, punishing the mother. The court began its analysis of the question by noting the law’s distinction between “a man’s injuring his own body” and “the crime that may be committed by another in inflicting such injury.” Id. at 351, 56 A. at 636. The court also noted that “taking his own life is a thing distinct from the crime of murder.” Id. at 350, 56 A. at 636. Reasoning from this distinction, the court concluded that the woman is not an accomplice to the abortionist’s crime. A necessary part of this reasoning was acceptance of the premise that when a woman consents to an abortion, the only legally cognizable injury she is risking is the injury to herself, and not to the unborn child 11. For if the unborn child was safeguarded by the statute, then the woman would be participating in the criminal injury of another person and hence would be an accomplice to the abortionist’s crime12.

Clear evidence that this reasoning in fact led to the court’s conclusion is the following passage:

“The criminal intent and moral turpitude involved in the violation by a woman of the restraint put upon her control over her own person is widely different from that which attends the man who, in clear violation of law, and for pay or gain of any kind, inflicts an injury on the body of a woman endangering health and perhaps life.”

Id., at 352-353, 56 A. at 636 (emphasis added). Plainly the court saw Section 53-29 as a statute that protected the mother from an injury that endangered her health and perhaps even her life. Nothing in the court’s opinion gives any recognition to the idea that the unborn child was a life entitled to the protection of the statute. Since the "objective of every abortion is to destroy the fetus and the objective is almost always achieved, the court could not possibly have been referring to the unborn child when it characterized Section 53-29 as a statute that “perhaps” endangers life.

Furthermore, in contrasting the crimes of the mother and the abortionist, the court gave its view of the purposes underlying Section 53-30:

“The public policy which underlies this legislation is based largely on protection due to the woman — -protection against her own weakness as well as the criminal lust and greed of others.”

Id. at 352, 56 A. at 636. In the context of the court’s opinion, protecting the woman “against her own weakness” means protecting her own health and perhaps life against the risk of a dangerous operation to which she might be tempted to submit. Protecting her against the “greed of others” apparently refers to the greed of the abortionist for “pay or gain of any kind.” But protecting her from the “criminal lust” of others most likely refers to a totally different purpose — deterring fornication 13. The only way the statute can protect her from the lust of others is by warning her not to engage in sexual relations on pain of having to bear any child that might be conceived. This pur*809pose of inhibiting non-procreative sexual relations may well have been part of the underlying state interest in 1860, just as it was to be in 1879 when the General Assembly banned the use of contraceptives 14

Thus the Connecticut Supreme Court, from a perspective far more relevant to an understanding of 1860 legislative thinking than the present, viewed the major interest underlying the abortion statutes as protection of the health of the mother. An additional interest may have been protection of the morals of the mother. And the court, by reasoning necessary to support the precise holding of the case, assumed that the statutes were not designed to protect the life of the unborn.

(e). Contemporary materials from other states that might shed light on the purposes of their Nineteenth Century abortion statutes are scarce. Professor Means’ exhaustive analysis of the history of the New York legislation demonstrates that protection of the mother’s health was the purpose of that state’s laws. Means, 14 N.Y.L.F. 411, supra. The same conclusion was reached by the old New Jersey Supreme Court, only nine years after that state’s statute was enacted 15.

With all these considerations in mind the question to be faced is whether the state interests being advanced in 1860 are today sufficient to justify the invasion of the mother’s liberty. I agree with Judge Lumbard that protecting the mother’s health, which plainly was a state interest in 1860 and may well have provided a valid state interest for these statutes when enacted, will not furnish a subordinating state interest today, when the mother’s life is exposed to less risk by abortion than by childbirth16.

The second justification advanced by the state, protecting the mother's morals, may well have been an objective in 1860. This justification apparently proceeds from the premise that if abortion is prohibited, the threat of having to bear a child will deter a woman from sexual intercourse. Protecting the morals of the mother thus turns out to mean deter*810ring her from having sexual relations. But the Supreme Court has decided that such a purpose cannot validate invasion of a woman’s right to privacy in matters of family and sex. Griswold v. Connecticut, supra; Baird v. Eisenstadt, supra17.

That leaves the state’s third justification, protecting the life of the unborn child. Judge Lumbard is willing to assume this was a purpose of the 1860 legislature and finds it constitutionally insufficient. Judge Clarie concludes it was in fact a purpose of the 1860 legislature and finds it constitutionally sufficient. With deference, I am persuaded that protecting the life of the unborn child was most likely not a purpose of the 1860 legislature. At a minimum it has not been shown with sufficient certainty that this was the legislature’s purpose as to warrant a weighing of this purpose against the mother’s constitutionally protected rights. Whether a fetus is to be considered the sort of “life” entitled to the legal safeguards normally available to a person after birth is undeniably a matter of deep religious and philosophical dispute. If the Connecticut legislature had made a judgment on this issue and had enacted laws to accord such protection to the unborn child, the constitutionality of such laws would pose a legal question of extreme difficulty, since the legislative judgment on this subject would be entitled to careful consideration. Cf. Byrn v. New York City Health and Hospitals Corp., 329 N.Y.S.2d 722 (App.Div., 2d Dept., 1972), upholding a permissive abortion statute and concluding that the degree of protection to be accorded an unborn child is appropriately a matter for legislative determination. Since that legislative determination has not been shown to have been made, I think it is inappropriate to decide the constitutional issue that would be posed if such a legislative justification was before us.

Because I believe the only interests which the 1860 legislature was seeking to advance are not today sufficient to justify invasion of the plaintiff’s constitutionally protected rights, I join with Judge Lumbard in holding these statutes unconstitutional.18

*812II

As to the propriety of injunctive relief, plaintiff must show some equities more substantial than her desire to avoid the expense or inconvenience of defending a criminal prosecution. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). If the abortion of plaintiff Doe required only action on her part, it would be doubtful whether she could sustain her burden. But manifestly that is not the case. ' She desires to have an abortion performed by competent medical authorities. If she has the constitutional right to an abortion free of the threat of Section 53-30, it must follow that she has an equal right to secure appropriate medical assistance. But however willing plaintiff Doe might be to endure criminal prosecution, it is obvious that she cannot compel her physician to share the hazards of such litigation. Thus, she may well not have an abortion performed by her physician unless criminal prosecution of her doctor and those acting with him is enjoined. Therefore, plaintiff Doe has demonstrated that her need for an injunction is based on more than her desire to avoid a criminal prosecution of herself. It is based on the need to achieve the benefit of the declaratory judgment to which she is entitled. It may well be that the state will abide by the declaratory judgment and make no move to prosecute those who act in reliance upon this court’s judgment. But the plaintiff should not be limited in her choice of doctors to those who are willing to accept the prediction that the state will not prosecute or the legal advice that any such prosecution would ultimately be unsuccessful. I believe she is entitled to select any competent medical personnel she chooses, assured by an injunction that there will be no prosecution.

. 381 U.S. at 486-499, 85 S.Ct. 1678 (Goldberg, J., concurring).

. 381 U.S. at 484, 85 S.Ct. 1678 (Douglas, J.).

. 381 U.S. at 499-502, 85 S.Ct. 1678 (Harlan, J., concurring in the result).

. Means, The Law of New York Concerning Abortion anil the Status of the Foetus, 1664-1968: a Case of Cessation of Constitutionality, 14 N.Y.L.F. 411 (1968) ; Means, The Phoenix of Abortional Freedom : Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335 (1971).

. Means, 17 N.Y.L.F. at 381-82.

It may be, however, that Professor Means’ conclusion as to state laws in general has not recognized the special imxmct of Comstockery in Connecticut, where non-procreative sexual relations were considered an evil necessitating in 1879 a ban on the use of contraceptives. See note 14, ■infra.

. While the issue is a matter of intense religious dispute today, it is interesting to note that within Catholicism the x)roponents of immediate animation had not prevailed by 1860. The Council of Trent in the Sixteenth- Century had decreed that no human body “can be informed by the soul of man except after the prescribed interval of time.” Prior to April 5, 1713 the Church had not baptized abortive fetuses of less than thirty days. On that date a decree of the Holy Office permitted baptism of such early fetuses if there was a reasonable doubt as to whether they had received a rational soul. It was not until 1917 that Canon Law was amended to provide for the absolute baptism of all abortive fetuses, however young, with baptism “sub oonditione” available where there is doubt that the fetus is alive. Indeed, so strong was the view against immediate animation that a Seventeenth Century author who suggested a theory of immediate animation was required by the Congregation of the Index to preface his book with the cautions that he was only setting forth speculation and that he was speaking only of abortive fetuses which display at least the rudimentary lineaments of human form. Means, 14 N.Y.L.F. at 413-15 n. 6. For the contours of an historical variation of viewpoint within Judaism, see id. at 412 n. 4.

. For example, when a pregnant mother was sentenced to death for a capital crime, she was examined to determine if the fetus had quickened. If it had not, she was executed. If it had, she was reprieved to permit the quickened fetus to be born, and then the mother was executed. Ch. 442 [1881] N.Y.Laws 76; Secs. 38, 40 [1833] Ga.Penal Code. See Means, 17 N.Y.L.F. at 377.

. Conn.Gen.Stat. (Rev.1821) tit. 22, sec. 14; Conn.Gen.Stat. (Rev.1835) tit. 21, sec. 15.

. Ch. 71 [1860] Conn.Pub.Acts.

. Conn.Gen.Stat. (1866 Rev.) tit. 12, sec. 9.

. This reasoning was spelled out by one of the cases upon which Carey relied, State v. Hyer, 39 N.J.L. 598, 600 (1877), which stated that the woman is not an accomplice because the offense of the abortionist (under a statute similar to Sec. 53-29) is not against the unborn child but against the health and life of the mother.

. On this reasoning, state courts that ■ have said the abortion statute of their state protects the unborn child have also said, with reference to the abortionist’s crime, that the consenting mother should be punished as a principal. State v. Alcorn, 7 Idaho 599, 64 P. 1014 (1901) ; see also Steed v. State, 27 Ala.App. 263, 170 So. 489 (1936). And this reasoning lias led one court to depart from the majority rule and hold that a consenting mother is an accomplice to the abortionist’s crime so that an accomplice charge is required. State v. McCoy, 52 Ohio St. 157, 39 N.E. 316 (1894).

. Carey was not unaware that “criminal lust” and “greed” could motivate the same person. 76 Conn, at 354, 56 A. 632.

. Ch. 78 [1,879] Conn.Pub.Acts.

When the Connecticut contraceptive statute was finally reviewed on the merits by the Supreme Court, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Justice White was charitable enough to view the statute as having as its purpose the inhibiting of only illicit sexual relations. 381 U.S. at 505, 85 S.Ct. 1678 (concurring opinion). That was the purpose advanced by counsel for the state. But plainly the statute made no distinction between use by married and unmarried couples. Moreover, the Connecticut Supreme Court had previously pointed out, in upholding the statute, that a proper legislative purpose was to inhibit all non-procreative sexual relations, not just illicit relations. State v. Nelson, 126 Conn. 412, 424, 11 A.2d 856, 861 (1940) :

“Whatever may be our own opinion regarding the general subject, it is not for us to say that the Legislature might not reasonably hold that the artificial limitation of even legitimate child-bearing would be inimical to the public welfare.” (Emphasis added).

Moreover, the court quoted with approval the following language from Commonwealth v. Allison, 227 Mass. 57, 62, 116 N.E. 265 (1917), commenting on the purposes of statutes including the Massachusetts contraceptive statute on which the Connecticut statute was modeled:

“Their plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint . ” 126 Conn, at 425, 11 A.2d at 862.

. State v. Murphy, 27 N.J.L. 112, 114-115 (1858) :

“[The abortionist statute] was not to prevent the crime of abortion so much as to guard the health and life of the mother against the consequences of such attempts. The guilt of the defendant is not graduated by the success or failure of the attempt; it is immaterial whether the foetus is destroyed or whether it is quickened or not; in either case the degree of the defendant’s guilt is the same.”

. Professor Means has persuasively argued that the constitutionality of abortion statutes based on protection of the mother’s health ended sometime between 1900 and 1933 when, according to medical statistics, the mortality rate for physician-performed abortions dropped below the mortality rate for childbirth. Means, 17 N.Y.L.F. at 384-87.

. If the state interest in protecting tlie morals of the mother was the deterrence of illicit sexual relations, Griswold makes it clear that this purpose cannot constitutionally be achieved by a statute which includes married women within its coverage. To the extent that the state interest in protecting the morals of the mother was the deterrence of all non-proereative sexual relations (and this seems the more likely interpretation since the abortion statutes make no distinction between married and unmarried women), the First Circuit’s decision in Baird explicitly forecloses such an approach, 429 F.2d 1398, 1402 (1st Cir. 1970), and the Supreme Court’s affirmance tends to support not only the First Circuit’s conclusion, but perhaps the unconstitutionality of abortion statutes as well, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) :

“If the right of 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 original).

. A conclusion of unconstitutionality of a state statute despite tlie existence of a state interest that might be sufficiently compelling if actually considered by a legislature inevitably involves an inquiry into the murky area of legislative purpose. See Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970). As Professor Ely has demonstrated, the ground rules for such an inquiry are not clear, nor have the “rules” been consistently applied. AVhen a statute is challenged as being beyond tlie scope of an enumerated Congressional power or a generalized state police power, the inquiry is usually stated to be whether the legislature might rationally have been pursuing an objective that is within the scope of its power. See, e. g., Second Employers’ Liability Cases, 223 U.S. 1, 48, 32 S.Ct. 169, 56 L.Ed. 327 (1912) ; Wickard v. Filburn, 317 U.S. 111, 128-129, 63 S.Ct. 82, 87 L.Ed. 122 (1942) ; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 397-399, 57 S.Ct. 578, 81 L.Ed. 703 (1937). However, when a statute is challenged as invading an area of constitutionally protected liberty, some decisions appear to be searching not for a compelling national *811or state interest that is merely a rational possibility, but for an interest that was in fact being advanced by the legislature. In American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), the Court weighed, as against First Amendment values, not what Congress might have been thinking but what “Congress lias concluded,” what “Congress had ns its objective,” and what was the “manifest purpose” of Congress. Id. at 404, 407, 70 S.Ct. 674. Similarly in McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 289, 13 L.Ed.2d 222 (1964), the Court was not willing to speculate as to whether the state legislature might have had a compelling interest to justify a racial classification; the Court said its inquiry was “whether there clearly appears in the relevant materials some overriding statutory purpose.” And in an especially relevant context the Court has recently made a searching inquiry to determine the actual purpose of the Massachusetts contraceptive legislation, Baird v. Eisenstadt, supra.

In cases under the Establishment Clause, the Court has not upheld statutes because a secular purpose might rationally be postulated; the Court has insisted that there be a demonstration that the legislature in fact acted to achieve a secular purpose. McGowan v. Maryland, 366 U.S. 420, 429-453, 466-511, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) ; Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) ; Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). And where statutes are challenged as imposing cruel and unusual punishment or being a bill of attainder, the Court has not avoided these claims by speculating that a non-penal purpose might have existed ; it has sought to determine whether in fact the legislative purpose was penal or non-penal. Trop v. Dulles, 356 U.S. 86, 95-97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ; United States v. Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).

Sometimes the Court will consider a legislative purpose that plainly was not contemplated by the legislature, but normally this occurs only when the Court has already found the manifest purpose insufficient and simply goes on to reject the sufficiency of even conjectural purposes. See, e. g., Meyer v. Nebraska, 262 U.S. 390, 403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (rejecting sufficiency of state purpose to limit children’s mental activities after manifest purpose of promoting English as mother tongue was already rejected). And there may be a few instances where the Court has sustained a statute as achieving a purpose other than the one most likely intended by the legislature. See, e. g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (sustaining legislative discrimination between owner and renter truck advertising on grounds of different traffic hazards, rather than economic assistance). But such cases are extremely rare (Ely, supra, at 1215 n. 31), and when they occur, they uphold legislative economic classifications, not infringements of personal liberty.

In judging the statutes in the present case, the issue is whether the invasion of the mother’s personal liberty should be weighed against the conjectural purpose of protecting the life of the fetus, once the manifest purpose of protecting the mother’s health has been found insufficient. No case has been called to our attention that mandates such an adjudicatory process. Once a statute is shown to impair a constitutionally protected freedom, there is no reason to presume that the legislature would want that freedom impaired just because a rational purpose can later be postulated. On the contrary, more respect is shown to a legislature, and to constitutional freedoms, if the only state interest weighed against the impaired freedom is the interest which the legislature sought to advance in enacting the challenged statute. If there can be suggested some other state interest that might justify impairment of the freedom, the legislature should have the opportunity of deciding whether it chooses to advance such an interest. Its affirmative decision might still be unconstitutional, but a reviewing court will then have before it a full development of the competing interests. Such an approach is especially appropriate here, where a purpose that the legislature clearly was advancing was sufficient to support the legislation when enacted, but has been rendered insufficient by subsequent factual developments in medicine. In such circumstances, for a court to keep legislation in force by attributing to a legislature a purpose that the legislature most likely did not have is only a subtle but nonetheless substantial usurpation of the legislation function. Such a course would be based on the totally unrealistic assumption that, as to politically sensitive public issues, failure to repeal is the equivalent of a decision to enact.