(dissenting):
I respectfully disagree and accordingly dissent from the majority opinion. This Court’s bold assumption of judicial-legislative power to strike down a time-tested Connecticut Statute constitutes an unwarranted federal judicial intrusion into the legislative sphere. The state legislature long ago made a basic choice between two conflicting human values. It chose to uphold the right of the human fetus to life over a woman’s right to privacy and self-determination in sexual and family matters. The legislature has repeatedly refused to alter this decision to the present date.
The majority has reached out and grasped at the nebulous supposition that the protection of fetal life is not the purpose of the Connecticut anti-abortion laws. This assumption is unwarranted. The history of these statutes indicates that they were designed to protect fetal life.
In 1821, the Connecticut legislature adopted the first anti-abortion statute in this country. The legislature in its original treatment of the subject equated abortion with the crime of murder by poison.1 The 1860 amendment for the first time recognized that the mother also was capable of committing a crime by submitting to the abortion. This amendment made it plain that the legislature regarded both the fetus and the woman as the victims of the abortion.
Prior to 1860, the Connecticut statutes concerned only abortions performed up*813on a woman “quick with child.” This indicates a legislative determination that human “life” began at that point. The statute of 1860 amended that law to forbid abortion at any stage of fetal development. This amendment reflected a legislative judgment that fetal life at any stage merited the protection of the law.2 If the primary purpose of the anti-abortion laws was to protect the woman from the dangers of 19th century surgical techniques, as the majority suggests, it is impossible to understand why the original law prohibited abortions only after quickening. Certainly, the risk of infection caused by unsterilized instruments was as great before the fetus had quickened.
State v. Carey, 76 Conn. 342, 56 A. 632 (1904), has been pointed to as authority for the proposition that the anti-abortion statutes are aimed “largely” at protecting the woman and not the unborn child. Actually, Carey was decided on a completely different issue of law, namely, whether or not the woman is an accomplice to the crime of the abortionist, for the purpose of attacking her credibility. The court reasoned that while the woman could not be an accomplice to the crime of the abortionist, she could be guilty of committing a separate and distinct *814crime under the statute, namely, submitting to an abortion. It was in that context that the issue arose as to whether the trial judge committed error in failing to charge the jury that the testimony of the woman must be “suspect,” because she was an accomplice to the crime. The court’s reasoning on that evidentiary issue led to the incidental dicta, that the laws were aimed “largely” to protect the woman. The court emphasized that the woman was not an accomplice, but rather a victim of the abortionist’s crime for evidentiary purposes. This approach safeguarded the credibility of the only likely prosecution witness in abortion cases. The statute also afforded some justification for this position, in that one of the purposes of the law included the protection of the woman. However, this circumstance does not detract from the statute’s primary purpose, the protection of the human fetus.
The majority’s seizure of this single, isolated dictum articulated some 68 years ago and their reliance upon it as a main girder to support their position, is not only misplaced, but rises to the level of pedanticism, in light of the evidence of the present legislative purpose. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
The real issue here is whether or not the laws were designed to carry out a compelling state interest. Contrary to the majority's holding in this case, I respectfully submit that the Connecticut anti-abortion statutes do protect fetal life as a “compelling subordinating state interest.” Griswold v. Connecticut, 381 U.S. 479, 496-497, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). As such, they are, therefore, a constitutionally valid and a proper exercise of the power of the state. I would uphold these state laws, and deny relief. See, Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970).
Certainly, it is natural for a state to feel a compelling need to protect the human fetus.3 Indeed, it is difficult to imagine a more basic legislative concern than the protection of life itself.
“(I)n view of the varied opinions in medical science, is not the determination of when human life commences better left to the legislature, rather than the courts?” Doe v. Scott, 321 F.Supp. 1385, 1395 (N.D.Ill.1971) (Campbell, J., dissenting).
If there is ever to be any modification as to the stage of fetal development at which the fetus is to be protected as a human being, that decision is one uniquely suited to the legislature.
The case of Griswold, supra, which is relied upon by the majority, decided that the state could not, consistent with the zone of privacy emanating from the Bill of Rights, completely prohibit the use of contraceptives. The Court ruled that prohibiting contraceptives served no compelling state purpose. However, this decision is not applicable to the facts of the present case. It is one thing to prevent the impregnation of the ovum by the spermatazoa, and quite another to deliberately destroy newly formed human life. Different values are invoked. *815While the marital privacy referred to in Griswold limits itself to the personal conjugal relationship of only two people, abortion projects itself far beyond the bounds of personal intimacy. It is directed against an innocent victim, a third human being endowed with unique genetic cháracteristics. The state legislature has assumed the duty of protecting this individual, and recognizes its inherent natural right to life. Moreover, even if such protection were to constitute an invasion of the marital relationship, it is not prohibited. Both the majority and dissenting opinions in Doe v. Scott, supra,, recognized that a determination by the court that anti-abortion laws may intrude upon the sexual and familial intimacies of a woman’s life is not a sufficient justification to declare them to be an invasion of constitutional rights. A superior countervailing state interest of compelling proportions is manifest here, the protection of human life.
The majority cite as an extreme illustration that the Connecticut law proscribes abortions, even in situations where the pregnancy is the result of incest or rape, or where there is a likelihood that the child will be born with a serious mental or physical defect. While it is conceded that such pregnancies and births are often fraught with personal hardship, the proper forum in which to present and test such concerns is the legislature. As Justice Frankfurter wrote for the Court in American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 557, 69 S.Ct. 260, 267, 93 L.Ed. 222 (1949):
“Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling ; it is also an exercise in prophesy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people.” (quoted in Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971)).
The people, acting through their legislature, have in effect decreed that this new life is an innocent victim, not an unjust aggressor.
In Steinberg v. Brown, supra, a three-judge court, one judge dissenting, concluded that not only may a state constitutionally protect human life in the fetal stage, but that the fifth and fourteenth amendments, which guarantee that no person shall be deprived of life without due process of law, “impose upon the state the duty of safeguarding” fetal life. 321 F.Supp. at 746-747.
Certainly, the repeated failure of the successive attempts to repeal or liberalize the anti-abortion laws can be attributed realistically, only to a legislative determination to protect fetal life.4 As recently as December 10, 1968, the Legislative Council5 recommended to the legislature that no legislative action should be taken on the proposal to liberalize our present laws on abortion. At page 10 in this report, it stated:
“The Council feels that should an unborn child become a thing rather than a person in the minds of people, *816in any stage of its development, the dignity of human life is in jeopardy. The family, too, which is the very basis of our society, would be minimized or perhaps destroyed.”
The aforesaid conclusion by the legislative leaders leaves no room to question, but that their real concern was the protection of fetal life.6
As Justice Cardozo pointed out for the Court in Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937): “Our concern here as often is with power, not with wisdom.” The plain issue in this case is whether or not the state has the power through its legislature to protect what it regards as human life, when such choice is supported by substantial medical, biological, and social justification. Where the state has duly enacted laws to further such purposes, such statutes bear the presumption of constitutionality. See United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); and United States v. Weisenbloom, 168 F.2d 698, 700 (2d Cir. 1948).7 This presumption clearly extends to the validity of the purpose underlying any legislative enactment. See, e. g., Street v. New York, 394 U.S. 576, 590-591, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1961).
It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits. The Connecticut legislature has historically, consistently, and affirmatively expressed its determination to safeguard and respect human life. The action of the majority constitutes an unwarranted federal judicial intrusion into the legislative sphere of state government. The judiciary was never intended nor designed to perform such a function. I would uphold the constitutionality of the challenged state statutes and deny relief.
. Statute of 1821, Title 22, § 14, p. 152:
“Administering poison •with intent to murder or cause miscarriage:
“Any person who administers a poison or other noxious substance with intent to murder, or cause or procure the miscarriage of any woman, then being quick with child shall be imprisoned for life or such other term as the court determines.”
. “The public policy underlying the abortion laws in Connecticut is open to debate, but the legislative history supports the theory that the abortion laws are an extension of the colonial murder law. Risking the lives of the gravida (the pregnant woman) or the quickened fetus was first discouraged by punishment of certain acts done for the purpose of causing a miscarriage. By 1860, a growing acceptance of the concept that the fetus is a human being from conception challenged the Connecticut legislators to make some basic choices. They adopted a policy of equal protection of the gravida and her fetus as is evidenced by the statutory language which accorded them equality of the status under the law. (the 1860 statute proscribed an abortion “unless the same shall have been necessary to preserve the life of such woman, or of her unborn child.”) Deterrence of the woman’s acts was necessary under this policy, but perhaps compassion for her poignant situation prompted a lower penalty for her offense. Only abortions medically indicated as necessary to preserve the life of the woman or the child are allowed.” A Report to the Connecticut Criminal Law Revision Commission ; The Connecticut Abortion Statutes: Legislative History, Case Law Development, Comparative Analysis, some Recommendations, by Laura
A. Pope, at 15-16 (1966).
In Hay, 1859, the House of Delegates of the American Medical Association adopted a resolution “condemning the act of producing abortion at every period of gestation, except as necessary for preserving the life of the mother or child.” Digest of Official Actions, 1846-1958, American Medical Association, at 68 (1959).
Further indication of the concern for the fetus in the 19th century is provided by the medical journals of that period. Dr. Isaac N. Quimby, for example, criticized laws which proscribed abortion only after quickening:
“This ancient, but now exploded theory that life in the foetus does not commence until the third or fourth month of gestation, is founded upon ignorance and the misconception of facts — and contrary to the revealed truths and investigations of modern science.
“This fallacious idea that there is no life until quickening takes place, has been the foundation of, and formed the basis, and been the excuse to ease or appease the guilty conscience, which has led to the destruction of thousands of human lives.
“Should we not then assert most positively that the life of the foetus commences at the moment conception takes place, and therefore the destruction of the foetus, at any period of gestation, should constitute murder?” Quimby, “Introduction to Medical Jurisprudence,” Journal of the American Medical Association, Vol. 9, at 164 (1887). See also, Markham, “Foeticide and its Prevention,” Journal of the American Medical Association, Vol. 11, p. 805 (1888).
. It is instructive to note that the law has long recognized the fetus as a person for both tort law and property law purposes. See, e. g., Bonbrest v. Kotz, 65 F.Supp. 138 (D.C.D.C.1946) ; Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967) (recovery for a 31/2 month old fetus under wrongful death statute) ; Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960) (recovery for 1 month old fetus). See also Application of Pres. & Dir. of Georgetown College, 118 U.S.App.D.C. 80, 331 F.2d 1000 (1964) and Raleigh Fitkin-Paul Memorial Hospital etc. v. Anderson, 42 N.J. 421, 201 A.2d 537 (1964), cert. denied, 377 U.S. 985, 84 S.Ct. 1894, 12 L.Ed.2d 1032 (1964).
. See note 2, supra.
. The Council is a bi-partisan body composed of the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the majority and minority leaders of both houses, ex-officio, and three Senators and six Representatives from each major political party, (a total of 9 Senators and 15 House members) who are elected on or before the first Wednesday of May during each regular session.
. Numerous legislative attempts to repeal or modify the Connecticut anti-abortion laws have been unsuccessful. In 1967 and 1969, two such measures reached the floor of the House and were rejected. There is no doubt that the principal, if not exclusive, consideration motivating these rejections was the legislative concern with fetal life. See, e. g., the floor debate on H.B.No.6584, a proposed liberalization of the Connecticut abortion laws. 1971 Proceedings, Connecticut General Assembly (House), Vol. 14, pp. 1252-1290.
. The words of Justice Harlan, speaking for the Court, in Flemming are appropriate here:
“Judicial inquiries into Congressional (legislative) motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute’s setting which will invalidate it over that which will save it. ‘ (I) t is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void.’ Fletcher v. Peck, 6 Crunch 87, 128 [, 3 L.Ed. 162].” 363 U.S. at 617, 80 S.Ct. at 1376.