321 F. Supp. 1385

CAMPBELL, Senior Judge
(dissenting).
The typically erudite opinion of our distinguished Chief Judge Swygert excellently presents some philosophical reasons for amendment to or repeal of the existing abortion statute by the Illinois Legislature. I must respectfully disagree however when these reasons are advanced to support a judicial determination that the statute “is unconstitutional because it is impermissibly vague and unduly infringes women’s right to privacy.” Neither the wisdom of this statute nor its conformity to the accepted mores of Illinois in 1971 is the issue before us. As a federal court we are concerned only with the limited question of whether in enacting this statute the people of Illinois have exceeded the limitations of the United States Constitution.
By their foregoing decision and order in this case concluding that those limits have been exceeded, my learned brothers strike down a state statute which has been enforced for one hundred years and impose upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals. In my view this unwarranted intrusion by the federal judiciary into the affairs of Illinois in the name of constitutional interpretation is far beyond properly limited federal powers and is' not supported by the facts of this ease nor the precedents cited by my brethren.
The basis of the majority decision is twofold: (1) the Illinois statute (and particularly the exception found therein) is so vague as to render it unconstitutional; and (2) by prohibiting the destruction of fetal life the statute invades the privacy of the women and the family entities of Illinois.
On the vagueness question I first observe that we have before us no contention by any party that an actual situation exists where a licensed physician acting in good faith is in jeopardy of prosecution for performing an abortion he believed to be “necessary for the preservation of the woman’s life.” In other words we are presented with no actual circumstance where the vagueness question is in issue. The rather forced game of semantics urged by plaintiffs and adopted by the majority has not presented any actual controversy but is merely a convenient vehicle for these plaintiffs to challenge a law which they believe is unwise and which they have thus far despite heroic efforts been unable to repeal or amend by the legislative process.
A perusal of state and federal criminal codes reveals numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one. Indeed Chief Judge Swygert, in writing his court’s opinion upholding the constitutionality of the Illinois disorderly conduct statute, found that the language of that statute prohibiting any act done in “such unreasonable manner as to alarm or disturb another” was not unconstitutionally vague. As stated by him in that opinion: “The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey ‘sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” United States v. Woodard, 376 F.2d 136, 140 (7th Cir. 1967).
His opinion goes on to state, “The statute proscribes conduct that is so unreasonable as to ‘alarm or disturb’ another and provoke a ‘breach of the peace’. The term ‘breach of the peace’ has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss.” (Id. at 141). In our case, however, the same judge concludes that men and women of ordinary intelligence cannot understand the essential meaning of the words, “necessary for the preservation of the woman’s life.” I find it difficult to reconcile the reasoning in the Woodard case with that set forth in the opinion of the majority herein.
The words of the Illinois Abortion Statute taken in their ordinary meaning sufficiently convey definite warning as to the proscribed conduct and “have over a long period of years proved entirely adequate to inform the public, including both lay and professional people, of what is forbidden.” Steinberg v. Rhodes, 321 F.Supp. 741, 745 (N.D.Ohio, 1970); Babbitz v. McCann, 310 F.Supp. 293, 297 (E. D.Wis.1970). The statement of the court in the Steinberg opinion is appropriate here: — “The problem of the plaintiffs is not that they do not understand, but that basically they do not accept, its proscription.” 321 F.Supp. at p. 745.
I find the second conclusion of the majority, that the statute is not supported by a sufficient legitimate state interest, even more disconcerting. As the majority correctly points out, the determination that women have a fundamental interest in choosing whether to terminate pregnancies does not in and of itself establish that the Illinois statute is unconstitutional. The critical issue is whether the state has a sufficient interest in preventing abortion to justify its prohibition. My brothers conclude that the State of Illinois does not have a sufficient interest in preserving fetal life to support the statute before us, when the same is viewed with regard for countervailing rights to terminate pregnancies. It is at this juncture that I again part company with my brothers.
We, as did the Illinois Legislature, have before us the following undisputed facts relating to fetal life. Seven weeks after conception the fertilized egg develops into a well proportioned small scale baby. It bears all of the familiar external features and all the internal organs of an adult human being. It has muscles; hands with fingers and thumbs; and the legs have recognizable knees, ankles and toes.
The brain is operative and sends out impulses that coordinate the function of the other organs. Brain waves have been noted at 43 days. The heart beats; the stomach produces digestive juices; the liver manufactures blood cells; and the kidneys begin to function by extracting uric acid from the blood.
In the third month it can kick its legs, turn its feet, curl and fan its toes, make a fist, move its thumb, bend its wrist, turn its head, and even open its mouth and swallow and drink the amniotic fluid that surrounds it. Thumb sucking has been noted at this age and the first respiratory motions move fluid in and out of its lungs with inhaling and exhaling respiratory movements.
In the twelfth week it can move its thumb, in opposition to its fingers. It swallows regularly. It has active reflexes. The facial expressions of a fetus in its third month are already similar to the facial expression of its parents. By the end of that first trimester the fetus is a sentient moving being.
In the third month finger nails appear; sexual differentiation is apparent in both internal and external organs; and vocal chords are completed.
From the twelfth to the sixteenth week the child grows to eight or ten inches in height and receives oxygen and food from its mother through the placental attachment. In the fifth month it gains two inches in height and ten ounces in weight. A doctor will soon hear the heart beat with his stethoscope. It sleeps and wakes and may be awakened .by external vibrations.
In the sixth month the fetus develops a strong muscular grip with its hands; starts to breathe regularly and can maintain a respiratory response for twenty-four hours if born prematurely. It may even have a slim chance of surviving in an incubator. A child has been known to survive between twenty to twenty-five weeks old. Indeed, as medical science progresses in the field of detection the date of potential viability moves continually closer to earlier stages of gestation.
Dr. Arnold Gesell, in his publication. “The Embryology of Behavior, notes:—
“Our own repeated observation of a large group of fetal infants (an individual born and living at any time prior to forty weeks gestation) left us with no doubt that psychologically they were individuals. Just as no two looked alike, so no two behaved precisely alike. One was impassive when another was alert. Even among the youngest there were 'discernible differences in vividness,' reactivity and responsiveness. These were genuine individual differences, already prophetic of the diversity which distinguishes the human family.”
Similar facts of fetal life are discussed in detail in a recently published Law Review article, Byrn, Abortion-On-Demand: Whose Morality? 46 N.D. Law. 5 (1970). Professor Byrn concludes :—
“In summary: at eight weeks, after which the great majority of abortions are pérformed, the fetus is irreversibly organized into a recognizable human-child, is responsive to stimulation, and is possessed of a pumping heart, a functioning circulatory system, an active brain and all other internal organs. Erom the practical scientific point of view, ‘By the eighth week the embryo or fetus, as we now call it, is an unmistakable human being * *
This author also points out that abortion is a violent procedure regardless of the,stage of pregnancy. Byrn, Supra, p. 32.
Professor Byrn also relates (at pp. 8-9) the following experience of Paul E. Rockwell, M.D., Director of Anesthesiology at Leonard Hospital, Troy, New York:
“Eleven years ago while giving an anesthetic for a ruptured ectopic pregnancy (at two months gestation) I was handed what I believe was the smallest living human being ever seen. The embryo sac was intact and transparent. Within the sac was a tiny (approx. 1 cm.) human male swimming extremely vigorously in the amniotic fluid, while attached to the wall by the umbilical cord. This tiny human was perfectly developed, with long, tapering fingers, feet and toes. It was almost transparent, as regards the skin, and the delicate arteries and veins were prominent to the ends of the fingers.
“The baby was extremely alive and swam about the sac approximately one time per second, with a natural swimmer’s stroke. This tiny human did not look at all like the photos and drawings and models of ‘embryos’ which I have seen, nor did it look like a few embryos I have been able to observe since then, obviously because this one was alive!
“ * * * When the sac was opened, the tiny human immediately lost its life and took on the appearance of what is accepted as the appearance of an embryo at this age (blunt extremities, etc.)
“It is my opinion that if the lawmakers and people realized that very vigorous life is present, it is possible that abortion would be found much more objectionable than euthanasia.”
In my opinion the undisputed medical facts of record herein establish a sufficient state interest in the preservation of life to support the constitutionality of the statute before us.
The majority opinion does not hold that the Illinois Statute is void in its entirety or that every statute that prohibits the destruction of fetal life is unconstitutional. Rather, it seems to hold that the people of this State have a legitimate legislative interest in protecting some fetal life, but that the present statute which protects, “every fetus, no matter how defective or how intensely unwanted by its future parents, displays no legitimately compelling state interest.” I believe what the majority is suggesting is that if the Illinois Legislature had adopt-ted a statute which, while prohibiting abortions generally, permitted the destruction of the “defective” fetus or one that is “intensely unwanted” it would have displayed a legitimate state interest. It seems to me apparent, however, that if the legislature has the power to decide that a non defective fetus may not be destroyed, it can also decide that a defective fetus may not be destroyed. How much latitude shall judicially be given the legislature in its determination as to what is and what is not a sufficient “defect” to warrant destruction? How unwanted must a potential child be before its parents can demand destruction under the suggested judicial “intensely unwanted” standard? Merely stating these propositions illustrates the extent to which my brothers have wandered into the legislative domain in reaching their decision in this case.
But the majority does not rest its conclusion of unconstitutionality on such a tenuous base. Instead, the majority states: “We therefore rule that during the early stages of pregnancy — at least during the first trimester — the state may not prohibit, restrict or otherwise limit women’s access to abortion procedures * * * ” The opinion does not explain or even intimate how it arrived at this constitutional conclusion. It appears to me that my brothers have, by judicial fiat, successfully amended the Illinois statute to permit abortions in the first three months of pregnancy. Ironically, their amendment does not even meet sound legislative standards. No where do they explain how the “first trimester” test was arrived at, or what relationship it might have to the previously discussed notions of defectiveness or unwantedness. What rational basis supports their conclusion that the people of Illinois may have a sufficient interest in protecting the life of a fetus which has matured to the first trimester, but that no legitimate interest exists for protecting a life of a fetus a few days younger? I believe the Illinois Legislature, in adopting the present statute, was less arbitrary even if not as competent as my brothers on these social and moral matters. In my opinion, however, the legislature alone should determine what value society will place on this form of life, regardless of the age of development.
Thus far I have avoided any discussion of the sensitive subject of whether fetal life is “human” life. Admittedly physicians argue as to what point in the fetal development human life commences. As former Supreme Court Justice Tom C. Clark states in the Law Review article quoted by the majority, “Some physicians argue that abortion should be permitted with impunity at any time up to the sixth month of pregnancy since prior to that time the fetus is no more than a growing plant. On the other hand, many eminent physicians believe that the fertilized ovum has human life from the time of conception. In support of this argument they refer to the International Code of Medical Ethics, which states that a physician will maintain the utmost respect for human life, from the time of its conception.” Clark, Religion, Morality and Abortion: A Constitutional Appraisal, ■ 2 Loy.U.L.Rev. 1, 5 (1969). Assuming arguendo that fetal life is human life, can there be any question but that the State of Illinois has a sufficient legislative interest in its protection ? And, in 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? This was the conclusion reached by Mr.¡Justice Clark in the above quoted article. Significantly, while liberally quoting Justice Clark’s article on the subject of abortion (see notes 26 and 27), the majority conveniently ignores its conclusion and admonition as follows:—
“Accommodation of conflicting doctrine is more difficult to achieve in the judicial than in the legislative process. Courts cannot reach out to reform our society. A problem comes to the Court in the form of a justiciable issue and is narrowly drawn, rendering the Court's ruling contracted and finespun. Legislatures, on the other hand, have such facilities for investigation as hearings and may address themselves to the necessities of broad social needs and the correction of evils, both probable and existing. As Mr. Justice Cardozo said, ‘Legislation can eradicate a cancer, right some hoary wrong, correct some definitely established evil, which defies the feebler remedies, the distinctions and the fictions familiar to the judicial process.’
“The courts work on a case-by-case system which deals with the past rather than the future. Society would not .have the benefit of the sweeping effect of a statute, nor would the doctor have the protection that he is entitled to receive. The case method would be slow, expensive, and possibly disastrous. It is for the legislature to determine the proper balance, i. e., that point between prevention of conception and viability of the fetus which would give the State the compelling subordinating interest so that it may regulate or prohibit abortion without violating the individual’s constitutionally protected rights.” (At pp. 10-11).
To support their conclusion that the people of Illinois have exceeded the proper bounds of legislative interest, the majority primarily rely on the rationale of the Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. But Griswold held only that a statute which forbade the use of contraceptives by married couples violated their right to privacy. In writing the opinion of the Court, Mr. Justice Douglas indicated that the Connecticut statute was “unnecessarily broad” and prevented activities which might otherwise be subject to state regulation. (381 U.S. 485, 85 S.Ct. 1678). The more thorough concurring opinion, written by Mr. Justice Goldberg, stressed that there was in that case no showing that the statute was necessary to accomplish a permissible state interest.
In this case, however, there is in my opinion a valid and permissible state interest — the protection of human life or at least the protection of potential human life in the fetus. In my opinion the statute in question is no broader than is necessary to accomplish this valid and permissible state interest even though it does not distinguish or provide exceptions, as my brothers would prefer, for those which are ’“defective” or “intensely unwanted,” or have not matured to “the first trimester of pregnancy.”
In citing Griswold, the majority concludes: “we cannot distinguish the interests asserted by the plaintiffs in this case from those asserted in Griswold.” In other words, in their views, there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life, which as explained above may reasonably be construed to be human life. I find this assertion incredible. Contraception prevents the creation of new life. Abortion destroys existing life. Contraception and abortion are as distinguishable as thoughts or dreams are distinguishable from reality.
As for myself I am confronted with and bound by the plain facts before us in this case and I must conclude that the people of Illinois have a legitimate and sufficient interest in protecting fetal life to support the statute here considered. I find nothing in the Court’s teachings in Griswold to the contrary.
No individual right or freedom is ever advanced in this country through an unwarranted intrusion of the judiciary into the proper province of the legislature. Indeed, in these days of pressure groups regularly seeking from courts that which only legislatures can properly give, constitutional government is weakened each time courts place their personal philosophical views above the law.
I would grant the motion of defendants for summary judgment and leave the plaintiffs’ cause where under the Constitution it belongs — in the Illinois Legislature.
. The present statute is essentially the same as that enacted in 1874. (R.S. 1874, Oh. 38, Div. 1, § 3.)
. Attempts to amend or repeal the present statute failed in the last ’ (1969) session of the General Assembly. New proposals have already been introduced in the present (1971) session.
. Harper and Brothers, Publishers (1945), at p. 172.

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