MR. JUSTICE STEWART on Roe v. Wade

“In Roe v. Wade, 410 U. S. 113 (1073), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case, and nothing articulated in the Court's opinion in this case, which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent in part.”

“Roe v. Wade, supra at 410 U. S. 163, holds that, until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S. at 410 U. S. 153. Section 3(3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that, "since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person, even the spouse, to prevent abortion. . . ." Ante at 428 U. S. 69. But the State is not -- under § 3(3) -- delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is, instead, recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. [Footnote 3/1] It by no means follows, from the fact that the mother's interest in deciding "whether or not to terminate her pregnancy" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed, and may not be protected by the State. A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution. In describing the nature of a mother's interest in terminating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S. at 410 U. S. 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id. at 410 U. S. 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo.Rev.Stat. § 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of childrearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than § 3(3) of the Act now before us, resting, as it does, on precisely the same judgment.”

“Section 6(1) of the Act provides: "No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter. . . . Further, such physician or other person shall be liable in an action for damages." If this section is read in any way other than through a microscope, it is plainly intended to require that, where a "fetus [may have] the capability of meaningful life outside the mother's womb," Roe v. Wade, 410 U.S. at 410 U. S. 163, the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it. Indeed, even looked at through a microscope, the statute seems to go no further. It requires a physician to exercise "that degree of professional skill . . . to preserve the . . . fetus" which he would be required to exercise if the mother wanted a live child. Plainly, if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion, no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable, but while the physician is still able to certify "with reasonable medical certainty that the fetus is not viable." See § 5 of the Act, which flatly prohibits abortions absent such a certification. Since the State has a compelling interest, sufficient to outweigh the mother's desire to kill the fetus, when the "fetus . . . has the capability of meaningful life outside the mother's womb," Roe v. Wade, supra, at 410 U. S. 163, the statute is constitutional. Incredibly, the Court reads the statute instead to require "the physician to preserve the life and health of the fetus, whatever the stage of pregnancy," ante at 428 U. S. 83, thereby attributing to the Missouri Legislature the strange intention of passing a statute with absolutely no chance of surviving constitutional challenge under Roe v. Wade, supra.”