Full opinion text
OPINION ROBERT F. COLLINS, District Judge. This case presents a constitutional challenge to a recently enacted Louisiana statute regulating abortion. La.Rev.Stat.Ann. §§ 40:1299.35.1 et seq. (West Supp.1979). In approaching the issues presented in this case, this Court thinks that the following quotation from the landmark decision of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) is relevant: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s, experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. Roe, 410 U.S. at 116, 93 S.Ct. at 708-09. This Court earnestly seeks to accomplish this task. In pursuing this quest, the Court is bound by decisions of the United States Supreme Court and the jurisprudence which has evolved in this area. I. Margaret S., a single resident of New Orleans, Louisiana, brought suit in August, 1978 on behalf of herself and all those similarly situated seeking declaratory and injunctive relief against the operation of a Louisiana abortion statute, La.Rev.Stat. Ann. §§ 40:1299.35.1 et seq. (West Supp. 1979) (the Act). As a single, pregnant woman desirous of obtaining an abortion, Margaret S. alleged that the statute deprived her of fundamental constitutional rights, including her right to due process of law, equal protection, privacy, and the free exercise of religion, in violation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution. Dr. Roy C. Wood, Dr. Calvin Jackson, and Dr. Duncan McKellar, physicians licensed to practice in Louisiana, sued to represent all present and future Louisiana physicians who “desire to give full, safe, and adequate medical advice and treatment to their patients” but who allegedly would be restricted in their medical practice and threatened with criminal prosecution under the Act. They allege that the Act is vague, over-broad, a denial of equal protection and due process of law, and violative of their rights under the First, Ninth, and Fourteenth Amendments. Delta Women’s Clinic (Delta), with locations in both New Orleans and Baton Rouge, and Orleans Women’s Clinic offer gynecological services that include sterilization, first trimester abortions, and abortions subsequent to the first trimester. Causeway Medical Suite offers similar services, but does not perform abortions after the first trimester. All allege that the Act, by “subjectpng] . . . facilities which provide abortion services to regulation and criminal prosecution should they fail to comply with any of the [Act’s] provisions,” deprives them of their right to privacy and to due process of law under the Constitution of the United States. Dr. T. C. A. Okpalobi, d/b/a Gentilly Medical Clinic for Women (Gentilly), filed suit September 6, 1978 as a plaintiff-intervenor. After adopting all the claims set out in the original complaint, he focuses on La.Rev.Stat.Ann. §§ 40:1299.35.9, .10 (West Supp. 1979). He alleges that these sections violate his right to equal protection and due process of law and that they conflict with La.Rev.Stat.Ann. § 15:476 (West 1967) because of their intrusive effect upon traditional patient-physician confidentiality. On January 8, 1979, the Court certified this suit as a class action, with Margaret S. II and Dr. Roy C. Wood as named representatives of their respective classes. Trial was held in October and November, 1978. Final arguments were heard December 13, 1978. Final post-trial briefs were filed March 5, 1979. II. Jurisdiction in this case is founded on 28 U.S.C. § 1331(a) (1976) and 28 U.S.C. § 1343(3) (1976). III. Two threshold issues must be addressed: “[f]irst, whether the plaintiff[s] allege ‘injury in fact,’ that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court’s Article III jurisdiction, and, second, whether, as a prudential matter, the plaintiff[s] are proper proponents of the particular legal rights on which they base their suit.” Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). The Court must decide whether each class or group of plaintiffs satisfies this criteria. A. Margaret S. II: Margaret S. II, a thirty year old single woman and a mother of six children, intervened as a party plaintiff during her second trimester of pregnancy. She stated that she could not obtain and could not afford to obtain an abortion in a hospital. As a single, pregnant woman, Margaret S. II had a concrete interest in challenging the Act. Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 712-13, 35 L.Ed.2d 147 (1973) (Roe). Almost every section of the Act would affect either her decision to obtain an abortion or her ability to do so. The Court holds that Margaret S. II has standing to pursue this litigation, that she presents a justiciable controversy, and that the termination of her pregnancy has not rendered her case moot. Roe, 410 U.S. at 125, 93 S.Ct. at 712. B. Dr. Roy Wood, Dr. Calvin Jackson, Dr. Duncan McKellar, and Dr. T. C. A. Okpalobi: All four physicians present a justiciable controversy and have standing to sue on their own behalf: The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (Doe). The physicians also have an “individual economic and liberty interest ... [in the] right £o practice medicine free from the imposition of arbitrary restraints . .” Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 875 (5th Cir.), cert, denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975). Furthermore, they have standing to assert the rights of their patients, such as Margaret S. II. See Singleton v. Wulff, 428 U.S. 106, 113-18, 96 S.Ct. 2868, 2873-76, 49 L.Ed.2d 826 (1976). See also Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965) (stressing confidentiality and the professional relationship). C. Delta Women’s Clinic, Orleans Women’s Clinic, and Causeway Medical Suite: The clinics present a justiciable controversy since they, as well as the physicians, are threatened with criminal sanctions for failure to comply with certain provisions of the Act. They may also suffer certain financial injuries. There is some debate, however, as to whether the clinics also have standing to assert their patients’ claims. These corporate-plaintiffs “are another step removed.” It is arguable that the corporate-plaintiffs do not share the confidential relationship with their clients that the doctors they employ share with their patients. Since the issues in this case are adequately represented by Margaret S. II and the physicians, the Court finds it unnecessary to decide whether the corporate-plaintiffs have standing to sue. IV. The Court has certified this case as a class action pursuant to Fed.R.Civ.P. 23. Two subclasses were identified, one of women and one of physicians, whose respective representatives are Margaret S. II and Dr. Roy C. Wood. Because the original order was conditional, the Court now affirms its conclusion that this suit was properly brought and certified under Fed.R. Civ.P. 23(b)(2). V. In Roe, the Supreme Court concluded that the right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153, 93 S.Ct. at 727. The constitutional right of privacy, “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon State action,” involves “at least two different kinds of interests . . . [:] the individual interest in avoiding disclosure of personal matters . . . and . . . the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (footnotes omitted). Roe v. Wade implicitly focused on this second interest, “the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.” The Supreme Court held that this was a fundamental right which could be limited only by compelling state interests. Roe, 410 U.S. at 155-56, 93 S.Ct. at 727-28. Even though the Supreme Court determined that a woman’s right to terminate her pregnancy was fundamental, it rejected the argument “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Roe, 410 U.S. at 153, 93 S.Ct. at 727. The “right is not unqualified and must be considered against important state interests in regulation.” Roe, 410 U.S. at 154, 93 S.Ct. at 727. “The pregnant woman cannot be isolated in her privacy,” for she “carries an embryo and, later, a fetus.” Roe, 410 U.S. at 159, 93 S.Ct. at 730. “[I]t is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved.” Roe, 410 U.S. at 159, 93 S.Ct. at 730. In balancing the interests of a pregnant woman with the interests of the State, the Supreme Court identified three stages of pregnancy and defined the limits of state power to regulate abortion during each of those stages: (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Roe, 410 U.S. at 164-65, 93 S.Ct. at 732. With these principles in mind, the Court will consider the specific provisions of the Act which have been challenged. VI. DEFINITIONS: LA.REV.STAT.ANN. § 40:1299.35.1(1) (WEST SUPP.1979) The Act defines abortion as: “the deliberate termination of a human pregnancy after fertilization of a female ovum, by any person, including the pregnant woman herself with an intention other than to produce a live birth or to remove a, dead unborn child.” La.Rev.Stat.Ann. § 40:1299.-35.1 (West Supp.1979). Plaintiffs contend that this definition is impermissibly vague because it covers at least two methods of birth control, the intra-uterine device (IUD) and the “morning-after” pill. Both of these methods are deliberate attempts to terminate pregnancy after fertilization but before implantation. Plaintiffs argue that the Act is ambiguous because it includes certain birth control methods not normally thought of as abortion. It is settled that, as a matter of due process, a criminal statute that “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” . . . or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” is void for vagueness. . . . This appears to be especially true where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights. Colautti v. Franklin, 439 U.S. 596, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (citations omitted) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954) and Papachristou v. Jacksonville, 405 U.S. 156,162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972)). However, the Court has been unable to discover a definition of abortion that does not suffer from the same vagueness. The Act’s definition, although somewhat ambiguous, would not mislead a person of ordinary intelligence. “[A] statute will not be struck down as vague even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972) (“Condemned to the use of words, we can never expect mathematical certainty from our language.”). Abortion, as it is commonly understood, does not include'the IUD, the “morning-after” pill, or, for example, birth control pills. The Court finds that the Act’s definition of abortion is specific enough to give doctors, clinics, and patients “a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108, 92 S.Ct. at 2298-99. ABORTION IN HOSPITALS: LA.REV. STAT.ANN. § 40:1299.35.3 (WEST SUPP. 1979) This section states: “No person shall perform or induce an abortion upon a pregnant woman subsequent to the end of the first trimester of her pregnancy, unless such abortion is performed in a hospital.” Two problems exist with this provision. First, this section limits access to abortions subsequent to the first trimester of pregnancy (post-first trimester) without regard to the preservation of maternal health. Second, this section represents an attempt by the State to regulate abortion prior to the time period when the State’s interest in maternal health becomes compelling. A. Restricting post-first trimester abortions to hospitals has no rational relationship to preservation of maternal health: The Court notes that there are severe limitations on the availability of post-first trimester abortions in Louisiana. The Delta Clinics in New Orleans and Baton Rouge and the Orleans Women’s Clinic “are the only health facilities in the State of Louisiana that either the Alan Guttmacher Institute or the State Health Department have been able to identify as doing any second-trimester abortions.” The Court finds that there are no Louisiana hospitals performing abortions after the first trimester. Counsel for defendants argued that hospitals will respond to the demand for abortions when clinics can no longer perform them. However, hospitals have not responded to the present demand for post-first trimester abortions by providing service in those areas outside New Orleans and Baton Rouge where there are presently no abortion facilities. Thus, by requiring that post-first trimester abortions, that is abortions after the twelfth or thirteenth week of pregnancy, be performed in hospitals when hospitals are not presently nor prospectively available to perform such abortions is to effectively halt the performance of post-first trimester abortions in Louisiana. This result endangers maternal health by forcing a woman, more than twelve weeks pregnant, to select from a range of alternatives more dangerous to maternal health than the performance of a post-first trimester abortion in a clinic, where such abortions are now safely performed. The situation in Louisiana is analogous to the one described in Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (Danforth). In Danforth, the Supreme Court considered the constitutionality of a statute which prohibited the use of saline instillation as an abortion method after the twelfth week of pregnancy. At that time, “according to the testimony,” Danforth, 428 U.S. at 76, 96 S.Ct. at 2844, about 70% of all post-first trimester abortions in the country were done by saline instillation. The only other method that was safer was prostaglandin instillation. Despite the fact that prostaglandin was theoretically available as an alternative method, the Supreme Court reversed because the lower court failed to consider certain factors: First, it did not recognize the prevalence, as the record conclusively demonstrates, of the use of saline amniocentesis as an accepted medical procedure in this country; the procedure as noted above, is employed in a substantial majority (. . . from 68% to 80%) of all post-first-trimester abortions. Second, it failed to recognize that at the time of trial, there were severe limitations on the availability of the prostaglandin techñique, which, although promising, was used only on an experimental basis until less than two years before. See Wolfe v. Schroering, 388 F.Supp. at 637, where it was said that at that time (1974), there were ‘no physicians in Kentucky competent in the technique of prostaglandin amnio infusion.’ And appellees offered no evidence that prostaglandin abortions were available in Missouri. . . .Finally, the majority did not consider the anomaly inherent in § 9 when it proscribes the use of saline but does not prohibit techniques that are many times more likely to result in maternal death. Danforth, 428 U.S. at 77-78, 96 S.Ct. at 2845 (footnote omitted). As in Danforth, the anomaly in the instant case is that the statute would act to proscribe the safest alternative presently available for post-first trimester abortions, that is performing post-first trimester abortions in a clinic. This would increase problems of maternal health care. Without clinics, a woman will have three options other than foregoing the abortion: self-induced abortion, procurement of an abortion or an abortifacient from an unlicensed practitioner, or travel to another state where post-first trimester abortions are available. The dangers inherent in the first two are clear. The dangers inherent in forcing women out of state are more subtle. Women may lack access to out-of-state facilities. Morbidity and mortality rates will rise because the abortion is delayed and the follow-up is perforce negligible. For many, the cost will be prohibitive. The emphasis in Danforth and Wolfe v. Schroering, 388 F.Supp. 631 (W.D.Ky.1974), aff’d, 541 F.2d 523, 526-27 (6th Cir. 1976), is on the lack of available alternative methods of post-first trimester abortions. “The State, through [La.Rev.Stat.Ann. § 40:1299.35.3], would prohibit the use of a method [/. e. clinic post-first trimester abortions] which the record shows is the one most commonly used [in Louisiana] by physicians after the first trimester and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth.” Danforth, 428 U.S. at 78, 96 S.Ct. at 2845. Moreover, “as a practical matter, it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed.” Danforth, 428 U.S. at 78-79, 96 S.Ct. at 2845. The requirement that post-first trimester abortions be performed in hospitals is not a “regulation [that] reasonably relates to the preservation and protection of maternal health.” Roe, 410 U.S. at 163, 93 S.Ct. at 732. Rather, it is a requirement that “burden[s] an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision . . . .” Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2018, 52 L.Ed.2d 675 (1977). This section also presents a second problem which the Court must address. B. Because the dilation and evacuation (D & E) method of abortion up to the eighteenth week of pregnancy is safer than childbirth, the State’s interest in regulating abortion prior to the eighteenth week of pregnancy is not “compelling”: Under the rationale of Roe, “[t]he abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician” up to the point where maternal mortality rates in abortion approach those in childbirth. Roe, 410 U.S. at 164, 93 S.Ct. at 732. Before that point has been reached, “any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forego it, has largely disappeared.” Roe, 410 U.S. at 149, 93 S.Ct. at 725. Roe held that the State’s compelling interest in maternal health “in light of present medical knowledge” emerged at the end of the first trimester. Roe, 410 U.S. at 163, 93 S.Ct. at 731. “This is so because of the now-established medical fact, referred to above, that until the end of the first trimester mortality in abortion may be less than mortality in childbirth.” Roe, 410 U.S. at 163, 93 S.Ct. at 732. Since the Roe decision, major advances have occurred in medical knowledge. The post-first trimester abortion technique, dilation and evacuation (D & E), was relatively unknown at the time of the Roe decision. Presently, D & E has become the most common procedure employed to terminate pregnancies where the gestation period exceeds twelve weeks. D & E is an accepted method of abortion that is far safer than any other method currently used. In Louisiana, nearly all doctors use the D & E method when performing post-first trimester abortions; and, both Delta and Orleans Women’s Clinic use the D & E method when performing post-first trimester abortions. Based upon the evidence presented at trial, the Court finds that the D & E method of abortion up to the eighteenth week of pregnancy is safer than childbirth If there is no compelling state interest until abortion threatens maternal health in the same degree as does childbirth, then the State cannot impose regulations at a time — after the twelfth week and before the eighteenth week of pregnancy— when the abortion method used, D & E, is far safer than childbirth. Thus, the State’s interest in protecting maternal health does not become compelling until the eighteenth week of pregnancy. Because La.Rev.Stat.Ann. § 40:-1299.35.3 (West Supp.1979) requires abortions after the first trimester to be performed in a hospital, limiting access to abortion without regard to preservation of maternal health, and because it attempts to regulate abortions prior to the time when the State’s interest in maternal health becomes compelling, the Court holds that the instant section is unconstitutional. Accord, Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 483 F.Supp. 679 at 685-687 (W.D.Mo.1980). ABORTION AFTER VIABILITY: LA. REV.STAT.ANN. § 40:1299.35.4 (WEST SUPP.1979) A. Roe provides that the State, because of its legitimate interest in potential life, may regulate and even forbid abortions after a fetus becomes viable, “except when it is necessary to preserve the life or health of the mother.” Roe, 410 U.S. at 164, 93 S.Ct. at 732. The first sentence of La.Rev.Stat. Ann. § 40:1299.35.4(A) (West Supp.1979), while appearing to follow the guidelines set forth in Roe, uses the phrase “to prevent permanent impairment to her health.” (Emphasis added.) This is not the same standard articulated in Roe, preservation of maternal health. A doctor could determine that an abortion was necessary for the preservation of the immediate health of the mother (an emergency), or for the preservation of her health in the near future (a woman presently unable to face the stress of childbearing), or for the preservation of her health in the distant future (a woman for whom another pregnancy would mean an elevated risk of having a serious, but not permanent, illness). In other words, the concern may be for the mother’s immediate or long-term health. This section, on the other hand, only permits an abortion after viability where it will prevent permanent impairment to a woman’s health. Even if doctors could determine in advance which births would create risks of “permanent” impairment, it is impermissible to force them to do so. Preserving maternal health means more than preventing permanent incapacity. A rape or incest victim may not be able to prove that her mental health will be permanently impaired if she is forced to bear her attacker’s child, but she might be able to show that it is necessary to preserve her immediate mental health. The Act eliminates consideration of any disability that is not permanent, even if the impairment lingers for months or years before it ultimately disappears. The Court finds that the requirement of permanent impairment impermissibly constricts the meaning of Roe. This section also requires that the attending physician obtain the certification of one or perhaps two other doctors to confirm his judgment as to both the necessity of performing the abortion and the consequences of not doing so. Such “confirmation” proceedings will not withstand constitutional challenge: If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice. Doe v. Bolton, 410 U.S. 179, 199, 93 S.Ct. 739, 751, 35 L.Ed.2d 201 (1973). The Court therefore holds that La.Rev.Stat. Ann. § 40:1299.35.4(A) is an unconstitutional infringement upon a physician’s right to practice. B. La.Rev.Stat.Ann. § 40:1299.35.4(B) establishes a presumption of viability for fetuses that are more than twenty-four weeks old. Roe and its progeny have made it clear that neither legislatures nor courts may establish such presumptions. Determination of viability is a decision which must be left to the attending physician. [VJiability [is] a matter of medical judgment, skill, and technical ability . [I]t is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician. Danforth, 428 U.S. at 64, 96 S.Ct. at 2839 (discussing, in part, Roe’s analysis). This determination was recently reaffirmed in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (Colautti): Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability — be it weeks of gestation or fetal weight or any other single factor — as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point. And we have recognized no attempt to stretch the point of viability one way or the other. Colautti, 99 S.Ct. at 682. Defendants argue that the statute imposes only a presumption of viability which the physician can rebut on the basis of his own examination. However, this apparent flexibility cannot save the section. In a significant number of pregnancies doctors cannot accurately determine how old the fetus is and cannot, therefore, determine whether the presumption is applicable. Even the most modern technique, ultrasonic cephalometry, has an error rate of plus or minus two weeks. In order to avoid aborting a twenty-six-week-old fetus, doctors would have to cease doing abortions after the twenty-third week. More fundamentally, it would be impossible to rebut a presumption of viability with absolute certainty. Viability cannot be determined with precision until after birth. The question of whether a particular infant will survive cannot be answered before the infant is born. Before then, it is a matter of statistical probability, involving estimates of fetal age, health, weight, maternal health, and the availability of neonatal care. Since the Act does not make the doctor’s good faith determination of non-viability conclusive, the State could bring a criminal action questioning the doctor’s determination. In such a criminal action, “precise medical findings” that a fetus had less than 1/250,000 chance of survival might be insufficient for certain juries. See Colautti, 99 S.Ct. at 686. In order to protect himself, a doctor could not rely on his own findings and belief that, under the circumstances, a particular fetus was or was not viable, but would be forced to abide by the latest statistics from the most modern neo-natal care center and hope that the local prosecutor had the same figures. This is a statute that is ripe for “arbitrary and erratic arrests and convictions.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). It is also a statute that, by setting up an essentially irrebuttable presumption of viability, effectively takes the determination of viability out of the hands of the physician. The Court holds that La.Rev.Stat. Ann. § 40 ¡1299.35.4(B) is an unconstitutional infringement on a physician’s right to practice medicine. C. La.Rev.Stat.Ann. § 40¡1299.35.4(C) requires that once the presumption of viability exists the doctors must use the abortion method most likely to preserve the fetus. Even if the presumption of viability were valid, this section does not meet the standard set forth in Roe, which allows the State to forbid every abortion after viability “except when it is necessary to preserve the life or health of the mother.” Roe, 410 U.S. at 164, 93 S.Ct. at 732. It is undisputed that the method most likely to preserve the life of the fetus is a hysterotomy, a form of major surgery in which the contents of the uterus are removed through an abdominal incision. However, this is also the method involving the highest risk to the mother’s health. As a result of this section, a doctor who has determined that an abortion near the time of viability is necessary to preserve the life or health of the mother faces a dilemma: although the purpose of the operation is to preserve a woman’s health, this section forces the doctor to perform a hysterotomy, the operative method most dangerous to his patient. Presumably the doctor owes an ethical duty to the woman who is his patient, a duty which mandates use of the least dangerous method of abortion. This section, by forcing him to disregard his duty to the woman, paralyzes his ability to act in those situations “when it is necessary to preserve the life or health of the mother.” Roe, 410 U.S. at 164, 93 S.Ct. at 732. If he performs a dilation and evacuation, he is liable under the Act for failure to consider the fetus. If he performs a hysterotomy, he would be open to a malpractice action for failure to consider the woman. The Supreme Court has recently passed upon the Pennsylvania Abortion Control Act, Pa.Stat.Ann., Tit. 35, § 6605(a) (Purdon 1977), which “subjects a physician who performs an abortion to potential criminal liability if he fails to utilize a statutorily prescribed technique when the fetus ‘is viable’ or when there is ‘sufficient reason to believe that the fetus may be viable.’ ” Colautti, 99 S.Ct. at 678. The Pennsylvania statute directs the physician to employ an abortion technique best suited to fetal survival “ ‘so long as a different technique would not be necessary in order to preserve the life or health of the mother.’ ” Colautti, 99 S.Ct. at 688 (citing Pa.Stat.Ann., Tit. 35, § 6605(a)) (original emphasis). This statute is similar to La.Rev.Stat.Ann. § 40:1299.35.4(C), with one noteworthy difference: the Pennsylvania statute recognizes the importance of the preservation of the mother’s health and welfare when the health interests of the fetus and mother conflict. The Louisiana statute, on the other hand, orders the physician to employ an abortion technique most likely to preserve the health of the fetus without regard to the preservation of maternal health. Thus, the Pennsylvania statute provides greater protection for the preservation of maternal welfare than does the Louisiana statute. The Supreme Court, however, struck down the Pennsylvania statute because: it is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a “trade-off” between the woman’s health and additional percentage points of fetal survival. Serious ethical and constitutional difficulties, that we do not address, lurk behind this ambiguity. We hold only that where conflicting duties of this magnitude are involved, the State, at the least, must proceed with greater precision before it may subject a physician to possible criminal sanctions. Colautti, 99 S.Ct. at 688. La.Rev.Stat.Ann. § 40:1299.35.4(C) places the physician in a graver dilemma than the Pennsylvania statute because it is silent with respect to the protection of the mother’s health. This Court concludes that La. Rev.Stat.Ann. § 40:1299.35.4(0) is void for vagueness. D. La.Rev.Stat.Ann. § 40:1299.35.4(D) requires that a second physician be in attendance when a fetus is aborted after viability. The pregnant woman’s physician, while he is inducing the abortion, and the second physician, after the abortion, “shall take all reasonable steps ... to preserve the life and health of the unborn child.” Once viability exists, “the State’s important and legitimate interest in potential life” becomes compelling. Roe, 410 U.S. at 163-64, 93 S.Ct. at 732. In order to protect that interest, the State may regulate post-viability abortions heavily or it may forbid them outright, except when it is necessary to preserve the life or health of the mother. Roe, 410 U.S. at 163, 93 S.Ct. at 731. Thus, this Court rejects the argument that once the State decides to allow post-viability abortions, it must allow them to be done under the least restrictive conditions. The mere requirement that a second physician be present does not invade the first physician’s right to practice medicine since there is no requirement that the second physician approve of any action that the first physician takes. It is apparent that, no matter which abortion method a doctor uses, the second physician will seldom serve any useful function. However, the State can choose to be prepared for those rare instances when there is a live birth. See Floyd v. Anders, 440 F.Supp. 535 (D.S.C. 1977) (fetus aborted in 25th week survived twenty days after prostaglandin injection). The argument that the requirement will add severely to the cost of these abortions is not persuasive in favor of striking the section. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Supreme Court held that states could refuse to provide any public funding for elective abortions despite the heavy impact this would have on a poor woman’s choice whether or not to have an abortion. The Connecticut regulation places no obstacles — absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion . . . continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions is neither created or in any way affected by the Connecticut regulation. Maher v. Roe, 432 U.S. at 474, 97 S.Ct. at 2383. A similar “value judgment favoring childbirth over abortion” which the Court found permissible in Maher v. Roe, 432 U.S. at 474, 97 S.Ct. at 2382, is at work in this section: the Louisiana statute is designed to enhance the probability of survival, however minute, for fetuses aborted in post-viability, abortions. The mere physical presence, therefore, of a second physician is not impermissible. Although the requirement that a second physician be present is permissible, La.Rev.Stat.Ann. § 40:1299.35.4(D) is invalid because it suffers from the same infirmities as La.Rev.Stat.Ann. § 40:1299.35.4(C). La.Rev.Stat.Ann. § 40:1299.35.4(D) requires that “[d]uring the performance or inducement of the abortion, the physician . shall take all reasonable steps in keeping with good medical practice, consistent with the procedure used, to preserve the life and health of the unborn child.” This places the physician in the same dilemma of making “a ‘trade-off’ between the woman's health and additional points of fetal survival.” Colautti, 99 S.Ct. at 688. Furthermore, this requirement raises other serious questions. For example, if a doctor decided to do a hysterotomy, to whom is his duty owed “in keeping with good medical practice”? If it is to the mother, can the second doctor intervene if he decides that the first doctor is not taking all the reasonable steps he could to preserve the fetus? An operating room is not a practical place to resolve such ethical disputes. The danger that the mother’s health will be jeopardized is clear. The physical relationship between the woman and the fetus is too close to allow two physicians to pursue adverse treatment strategies for the mother and fetus. Thus, this Court holds that “where conflicting duties of this magnitude are involved, the State, at the least, must proceed with greater precision before it may subject a physician to possible criminal sanctions.” Colautti, 99 S.Ct. at 688. NOTICE AND CONSENT: LA.REV. STAT.ANN. § 40:1299.35.5 (WEST SUPP.1979) La.Rev.Stat.Ann. § 40:1299.35.5 (West Supp.1979) consists of two paragraphs, § 40:1299.35.5(A) and § 40:1299.35.5(B). These two paragraphs impose certain restrictions on the ability of a minor pregnant woman to obtain an abortion, thus restricting the minor’s right of privacy. “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Danforth, 428 U.S. at 74, 96 S.Ct. at 2843. However, this Court recognizes that “the State has somewhat broader authority to regulate the activities of children than of adults.” Danforth, 428 U.S. at 74, 96 S.Ct. at 2843. The Supreme Court has “recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed mature manner; and the importance of the parental role in child-rearing.” Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797 (1979) (Bellotti). “In [La.Rev. Stat.Ann. § 40:1299.35.5 Louisiana] has attempted to reconcile the constitutional right of a woman, in consultation with her physician, to choose to terminate her pregnancy as established by Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)] and Doe v. Bolton [410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)], with the special interest of the State in encouraging an unmarried pregnant minor to seek the advice [and/or consent] of her parents in making the important decision whether or not to bear a child.” Bellotti, 99 S.Ct. at 3046. This Court is: concerned here with a constitutional right to seek an abortion. The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter. Bellotti, 99 S.Ct. at 3047. With these principles in mind, the Court will analyze whether La.Rev.Stat.Ann. § 40:1299.35.5 meets constitutional standards. For convenience, the Court will first address the problems raised in paragraph B of La.Rev.Stat.Ann. § 40:1299.35.5. CONSENT: LA.REV.STAT.ANN. § 40:1299.35.5(B) (WEST SUPP.1979) La.Rev.Stat.Ann. § 40:1299.35.5(B) requires that any minor under the age of fifteen who desires an abortion must obtain either the written consent of her parent or guardian, or obtain an order from a court having jurisdiction over her permitting the abortion to be performed. The constitutionality of this paragraph is not a case of first impression because the Supreme Court has enunciated certain guidelines in Bellotti. There, the Supreme Court concluded: “if the State decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.” Bellotti, 99 S.Ct. at 3048. Although La.Rev. Stat.Ann. § 40:1299.35.5(B) provides an alternative procedure, the Court must decide whether this procedure complies with strictures enunciated in Bellotti. This section says nothing more than the pregnant minor may receive an order from a “court having jurisdiction over her that the abortion be performed or induced.” This is not enough: A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. Bellotti, 99 S.Ct. at 3048-49 (footnotes omitted). Applying the above quoted language from Bellotti to the instant section, the Court notes the following infirmities. La.Rev. Stat.Ann. § 40:1299.35.5(B) sets forth no standards or guidelines for the minor seeking judicial approval for abortion. For example, no provision is made for expedited hearing and for expedited appeal, the necessity for which is obvious in an abortion situation. Also the instant section does not insure the minor’s anonymity during the judicial proceeding. The Court holds that La.Rev.Stat.Ann. § 40:1299.35.5(B) fails to provide a procedure which satisfies the standards enunciated in Bellotti and it is, therefore, unconstitutional. NOTICE: LA.REV.STAT.ANN. § 40:1299.35.5(A) (WEST SUPP.1979) La.Rev.Stat.Ann. § 40:1299.35.5(A) states that a physician cannot perform an abortion until he gives twenty-four hours actual notice or seventy-two hours constructiveAiotice to a parent or legal guardian of all unmarried women under the age of eighteen who decide to obtain an abortion. The notice requirement is unnecessary if a court orders the abortion. The Court must decide whether this requirement infringes upon the ability of a minor to obtain an abortion, thus restricting the minor’s constitutional right of privacy. The Court notes that while this section applies to all unmarried women under the age of eighteen, its effect upon the age group between fifteen and seventeen years must be considered separately from its effect upon the age group less than fifteen years old. A pregnant woman under the age of fifteen has an option either to obtain a court ordered abortion without notifying her parents or to obtain parental consent which will operate to notify her parents. The State chose to exclude the age group between fifteen and seventeen from any requirement of parental consent before obtaining an abortion. See La.Rev.Stat.Ann. § 40:1299.35.5(B) (West Supp.1979). Apparently, the State determined that a minor woman between the ages of fifteen and seventeen is mature enough to make the decision whether to obtain an abortion without the necessity of either parental consent or a court order. Thus in Louisiana the following paradoxical situation exists: A seventeen year old woman, deemed by the State to be mature enough to obtain an abortion without parental consent, must nonetheless notify her parents that she is seeking an abortion or obtain a court ordered abortion. Ostensibly, the notice requirement furthers the State’s interest in insuring that parents are given the opportunity to participate in an important and potentially traumatic decision in the life of their minor daughter, thus promoting family dialogue and harmony. However, any state interest in encouraging consultation between the daughter who is seeking an abortion and her parents is not necessarily achieved by the notice requirement because merely giving notice to the parents does not assure that there will be any meaningful dialogue. In many cases the notice requirement will cause family disharmony because it will inform parents who may oppose their daughter obtaining an abortion, yet, those parents will be legally powerless to prevent their daughter from obtaining an abortion. The most significant difficulty with La. Rev.Stat.Ann. § 40:1299.35.5(A) is that it does not consider the minor’s constitutional right of privacy. The Supreme Court has indicated that the constitutionally protected “zone of privacy” involves at least two different kinds of interests. “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (footnotes omitted). La. Rev.Stat.Ann. § 40:1299.35.5(A) substantially affects a minor’s right to avoid the disclosure of personal matters. One of the most personal matters that can be disclosed is the fact that a woman is seeking an abortion. Roe commands that, during the first trimester, “the abortion decision . . . must be left to the medical judgment of the pregnant woman’s attending physician.” Roe, 410 U.S. at 164, 93 S.Ct. at 732. The physician, “in consultation with his patient” and no one else, must determine whether or not to go ahead with the abortion. Roe, 410 U.S. at 163, 93 S.Ct. at 731. Privacy can not exist when third parties are privy to the discussion. Furthermore, this section may also have a chilling affect on the minor’s right to independently make certain kinds of important decisions which are the basis of a woman’s constitutional right to obtain an abortion. Roe, 410 U.S. at 152-62, 93 S.Ct. at 726-31. Thus, both kinds of privacy interests are at issue here. It must be remembered that “[a] child, merely on account of his minority, is not beyond the protection of the Constitution.” Bellotti, 99 S.Ct. at 3043. The need to protect the constitutional right and the unique nature of the abortion decision, especially when made by a minor, required that the State act with particular sensitivity when it legislates to foster parental involvement in this matter. Bellotti, 99 S.Ct. at 3047. Although the Supreme Court did not explicitly rule on whether the requirement of giving notice to the parents of an unmarried minor was unconstitutional, it did rule on a similar issue. In Bellotti, the Supreme Court construed the constitutionality of a Massachusetts statute which required that a pregnant minor seeking an abortion must obtain the consent of her parents or obtain judicial approval following notification to her parents. The Supreme Court held that the statute did not satisfy constitutional standards because “it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.” Bellotti, 99 S.Ct. at 3052 (footnotes omitted). “If she satisfies the court that she is mature and well-informed enough to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent.” Bellotti, 99 S.Ct. at 3050. The Bellotti parental notice requirement is similar to the one in the instant case. Under the Massachusetts statute, even though a minor woman may obtain a court ordered abortion, she must still inform her parents. Under the Louisiana statute, even though a minor between the ages of fifteen and seventeen years is not required to obtain anyone’s consent for an abortion, she too must inform her parents. Applying the rationale of Bellotti to the instant case, minors between the ages of fifteen and seventeen years old should be permitted to obtain an abortion without any requirement of parental notice or consultation. Therefore, the Court will strike La.Rev.Stat.Ann. § 40:1299.35.5(A), because it imposes an undue burden upon the exercise of the right to obtain an abortion of unmarried women between the ages of fifteen and seventeen years. The Court notes that there may also exist constitutional problems with La.Rev.Stat. Ann. § 40:1299.35 which repeats the parental notice requirement and details its procedure. However, La.Rev.Stat.Ann. § 40:1299.35, enacted a week after La.Rev. Stat.Ann. § 40:1299.35.5, has not been challenged by plaintiffs and is not properly before the Court at this time. Thus, the Court will refrain from deciding the constitutionality of La.Rev.Stat.Ann. § 40:1299.-35. It is therefore unnecessary for the Court to consider whether the statutes are vague because La.Rev.Stat.Ann. § 40:1299.-35.5(A) applies to unmarried women under the age of eighteen years, and La.Rev.Stat. Ann. § 40:1299.35 applies to unemancipated minors. The Court has reviewed all sections of the Act as if the language of La. Rev.Stat.Ann. § 40:1299.35.5, dealing with guardian or parental notice and consent, had been struck. INFORMED CONSENT: LA.REV.STAT. ANN. § 40:1299.35.6 (WEST SUPP.1979) This section of the Act provides: “An abortion otherwise permitted by law shall be performed or induced only with the informed written consent of the pregnant woman, and one of her parents or her legal guardian whose consent is required in accordance with R.S. 40:1299.35.5 [Notice and Consent], given freely and without coercion.” La.Rev.Stat.Ann. § 40:1299.35.6 (A) (West Supp.1979). La.Rev.Stat.Ann. § 40:1299.35.6(13) consists of facts a woman’s physician must communicate to insure that the woman’s consent is an informed consent. The physician is also required to provide the patient with information concerning the risks of pregnancy and abortion. Finally, this section requires that the pregnant woman sign a copy of a consent form. The duty “to disclose the risks and alternatives of proposed treatment are not innovations in American law. . The root premise jurisprudentially is that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .’ True consent ... is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Karp v. Cooley, 493 F.2d 408, 419 (5th Cir.), cert, denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974), quoting Schloendorff v. Society of New York Hospital, 211 N.Y. 125,129, 105 N.E. 92, 93 (1914) (Cardozo, J.). Informed consent involves the fiduciary nature of the doctor-patient relationship as well as the “basic right of self-determination” that governs potential invasions of physical integrity. The aim is to encourage awareness in the patient’s mind of the risks associated with a medical procedure and to obtain his assent to encountering those risks. “The doctrine of informed consent . . . promotes individual autonomy and integrity of the patient; it encourages him to engage in rational decision-making; and it enhances health care delivery by increasing doctor-patient communication and reducing physician liability.” The appellation “informed consent” is somewhat misleading because the actual emphasis is on the physician’s duty to inform his patient rather than on the patient’s understanding of the physician’s explanation. Karp, 493 F.2d at 420 n.14. Therefore, the general rule is that all risks need not be disclosed. Even jurisdictions which base informed consent statutes on the broader base of materiality require disclosure only “when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to undergo the proposed therapy.” In Danforth, the Supreme Court held that it is both “desirable and imperative” that women make the decision as to whether or not to have an abortion “with full knowledge of its nature and consequences.” Danforth, 428 U.S. at 67, 96 S.Ct. at 2840. La.Rev.Stat.Ann. § 40:1299.35.6(A) is successfully directed and limited to that end. Unfortunately, portions of La.Rev.Stat. Ann. § 40:1299.35.6(B) are not as well drafted. The Danforth opinion did not inquire into the basis of informed consent: One might well wonder, offhand, just what “informed consent” of a patient is. The three Missouri judges who composed the three-judge District Court, however, were not concerned, and we are content to accept, as the meaning, the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession. Danforth, 428 U.S. at 67 n.8, 96 S.Ct. at 2840 n.8 (emphasis added). Flexible informed consent statutes leaving specific details to the doctor’s best judgment have been upheld. However, analysis of La.Rev.Stat.Ann. § 40:1299.35.6(B) reveals constitutional infirmities closely analogous to those discussed in Wynn v. Scott, 449 F.Supp. 1302 (N.D.Ill.1978), aff’d sub nom. Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979). La.Rev.Stat.Ann. § 40:1299.35.6(B) (3): The Court has already held that the most advanced method of determining fetal age has an error rate of plus or minus two weeks. During the first trimester, when the vast majority of abortions occur, development of the fetus is extremely rapid. Since a doctor can not pinpoint the exact age of a fetus, the doctor will have to describe fetal development over a five week period, the week the doctor thinks is accurate, plus two weeks on either side in case of error. The statute, however, does not give the doctor that option. Instead, it requires him, under threat of criminal penalties, to describe the fetus “at the gestational point of development at which time the abortion is to be performed . . . .” This can not be done by a conscientious physician. Even if he protects himself by including an extra two weeks on either side, he still has no assurance that under the statute he has included sufficient detail. Furthermore, the requirement that physicians inform women of specific items in a manner “including but not limited to”, is “both overly vague and overly specific.” Wynn v. Scott, 449 F.Supp. at 1317. The physician does not have fair warning of what is required. It is unclear whether the state could prosecute a physician for failure to' warn the woman of a danger not included in the list. On the other hand, the very specificity . . . [required] places the physician in the “straitjaeket” condemned in Danforth. Wynn, 449 F.Supp. at 1317. The doctor’s right and ability to practice medicine “free from the imposition of arbitrary restraints” will be injured no matter how he attempts to comply with the statute. Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 875 (5th Cir.), cert, denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975). Finally, La.Rev.Stat.Ann. § 40:1299.35.-6(B)(3) is also unconstitutional because it forces the doctor to state that “the unborn child is a human life from the moment of conception . . . .” This statement disregards Roe’s finding that the state may not make a determination that life begins at the moment of conception: “Since the fetus is not a person, . . . neither is it a child.” Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975), (citing Roe, 410 U.S. at 156-58, 93 S.Ct. at 728-29), aff’d sub nom. Gerstein v. Poe, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). See also Carver v. Hooker, 501 F.2d 1244, 1246 n.2 (1st Cir. 1974); Doe v. Israel, 482 F.2d 156, 159 (1st Cir. 1973). La.Rev.Stat.Ann. § 40:1299.35.-6(B)(4) : This section includes the impermissible presumption that viability occurs twenty-two weeks after conception. Although the section begins with the permissive language “may be viable”, it concludes with language that asserts an obligation to a “viable unborn child.” Since it is impossible for a doctor to tell whether a fetus is viable until after birth, the statute is based on the assumption that the fetus is viable twenty-two weeks after conception. If it were not, the doctor could not tell when his legal obligation to the fetus arose. La.Rev.Stat.Ann. § 40:1299.35.6(B)(4) is unconstitutional because it is based on an irrebuttable presumption of viability. Colautti, 99 S.Ct. at 686. La.Rev.Stat.Ann. § 40:1299.35.6(B)(5): This section mandates that physicians make the following statements to patients to insure “truly informed consent”: That abortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriages and prematurity in subsequent pregnancies, and that abortion may leave essentially unaffected or may worsen any existing psychological problems she may have, and can result in severe emotional disturbances. La.Rev.Stat.Ann. § 40:1299.35.6(B)(5) (West Supp.1979). In determining the constitutionality of such a provision the Court must balance the State’s legitimate interest in maternal health against the patient’s right to consult her physician without state interference. The Eighth Circuit Court of Appeals has recently weighed these two competing interests: The legitimate state interest at stake here is protecting the mother by requiring an informed consent to the abortion decision. The Court in Danforth held that Mo.Ann.Stat. § 188.020(2) (Vernon 1978), Missouri’s informed consent provision, was not “in itself an unconstitutional requirement. The decision to abort, indeed, is an important, and often stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.” Planned Parenthood v. Danforth, supra, 428 U.S. at 67, 96 S.Ct. at 2840. But the Supreme Court did not hold that a state may require physicians to provide to each patient any and all information required by the state, regardless of its legality, truth, constitutionality or medical advisability. “[W]e are content to accept, as the meaning [of informed consent], the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired