"viability" occurs around the end of the second trimester of pregnancy. See page 160, at n. 60, 93 S. Ct. 705. Both of those "definitions" of "viability" appear in a paragraph of the Roe opinion which canvasses various attitudes towards the question of when fetal life begins. But the Supreme Court nowhere in Roe enunciated a definitive explanation of the word "viability" and, in fact, expressly declined to do so: "We need not resolve the difficult question of when life begins." See page 159, 93 S. Ct. 705, 730. The net result of Roe is a standard for determining when a state's intervention to prevent abortions based on an interest in the potential life of the fetus is permissible without a precise definition of the crucial concept upon which that standard relies, i. e., "viability". Understandably, this has left pregnant women, doctors, legislatures, and courts in a quandary. The Pennsylvania Legislature has fastened upon the language of one definition of "viability" surveyed in Roe. The issue before the Court is whether use of that definition to mark the point of the state's permissible intervention meets the standards in Roe.
Merely because the phraseology of section 2 appears in Roe does not mean that its use as a standard for "viability" necessarily satisfies the principles outlined in the opinion. This Court finds that although the definition of "viability" used by the Pennsylvania Legislature was gleaned directly from Roe v. Wade, supra, it is nevertheless so vague that its effect is potentially to prohibit or deter abortions in a manner totally inconsistent with Roe. Cf. Planned Parenthood Association v. Fitzpatrick, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). A doctor contemplating the performance of an abortion and faced with the definition of "viability" contained in § 2 is, prior to the operation, unable to determine with assurance whether he will be subject to prosecution if he operates. Although the statute only requires him to make an educated guess that there is an absence of "viability" before proceeding and apparently does not expose him to criminal sanctions if he is wrong, he nevertheless faces the possibility that there will be a challenge in a later criminal proceeding to the manner in which he made the assessment of non-viability prior to the performance of the abortion. Consequently, the uncertainty introduced by § 2 is likely to lead to a severe curtailment of permissible abortions because of the fear of criminal prosecution engendered in doctors who are requested to perform them.
As already noted previously, the Supreme Court did not hold that "viability" occurs sometime after the 24th week of pregnancy. The Court in Planned Parenthood Association v. Fitzpatrick, supra, while recognizing the lack of such a definitive holding, went so far as to find that the Supreme Court in Roe "intended" to set the lower limit of "viability" at that point. Although this Court is not prepared to adopt that position, it does agree that such a standard is much more specific and generates significantly less uncertainty in a physician contemplating the performance of an abortion. (Even that standard does not remove all doubt because there remains in such a situation the question as to what week of pregnancy a particular woman has attained.) Although this Court does not hold that a state is absolutely precluded from setting the lower limit of "viability" at a period prior to the 24th week of gestation, it does believe that a vague definition such as that found in the Pennsylvania Abortion Control Act of 1974 is potentially so far-reaching that it must be declared invalid along with the sections which incorporate it.
We hold that §§ 5(a) and 6(b) of the Pennsylvania Abortion Control Act, which incorporate the definition of "viability" contained in § 2 of that Act, are unconstitutional.
IV. Record-Keeping Provisions.
of the Act requires every facility in which an abortion is performed within the Commonwealth of Pennsylvania to keep on file certain forms which contain various data and which are signed by persons who performed abortions. Certain of the items required to be kept on file relate to aspects of abortions which the state may not regulate. For example, on all abortions the name, address, and age of the woman involved are required. Also required is information concerning the husband of the woman involved which is unnecessary given our holding with respect to § 3(b)(i). A statement, apparently applying to all abortions, of the facts upon which the person performing the abortion relied to establish that the abortion was necessary to preserve the life or health of the mother is also mandated by § 6(d). Clearly, such a finding is not required for all abortions. The defects in § 6(d) are so pervasive as to render an attempt to identify and retain its untainted portions futile.
We hold that § 6(d) of the Pennsylvania Abortion Control Act is unconstitutional.
V. Appropriate Relief.
As noted in Planned Parenthood Association v. Fitzpatrick, supra, a court should not enter injunctive relief if it is satisfied that the defendants will honor a declaration that certain statutes are unconstitutional. Poe v. Gerstein, 417 U.S. 281, 94 S. Ct. 2247, 41 L. Ed. 2d 70 (1974); Douglas v. Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Roe v. Wade, supra. The Defendants in this case are 65 district attorneys. The Court cannot say with assurance on the present state of the record that each and every one of them will acquiesce in a declaratory judgment. The Court is of the view that the threat of criminal prosecution for violations of the provisions of the Pennsylvania Abortion Control Act which we have found unconstitutional could deter the performance of abortions by hospitals and physicians and cause irreparable injuries to members of the Plaintiff class. Consequently, injunctive relief will be granted.
An appropriate order will issue.