"This prosecution was begun before Planned Parenthood, but after Roe v. Wade. Roe v. Wade itself, however, made it clear that proscription of abortions was impermissible before the child became viable. The Court's notice of the fact that viability generally occurs around the twenty-eighth week of pregnancy, though it may occur sooner, made it clear that the Court was treating the question of viability as one of fact, thus preventing legislatures from arbitrarily fixing a particular date for viability. Viability must, under Roe, be determined on a fetus by fetus basis. Thus, at the time these indictments were sought against Dr. Floyd, it should have been obvious to the prosecutor that there was no possibility of his obtaining a conviction that could have been constitutionally sustained. The difficulty was that the prosecutor had not read the opinion in Roe v. Wade. He had read about it in a magazine, and he had a digest of it prepared by a first-year law student which, in several respects, was quite misleading. We cannot fault the prosecutor for thinking that it would not be unreasonable for a state to proscribe all abortions after the twenty-fourth week following conception. Some fetuses, the Supreme Court said in Roe v. Wade, attain viability by that time. Whether or not a child is viable may be difficult to ascertain prior to delivery, and the twenty-fifth week approaches the twenty-eighth week when most children do become viable, if not viable earlier. Thus, we need not upbraid the prosecutor for supposing that the Constitution reasonably might leave to the states some area of discretion in proscribing abortions at a time when all fetuses are approaching viability, and when some have actually attained it. The prosecutor, however, was chargeable with knowledge of what Roe v. Wade actually held, and he was not entitled to proceed on the basis of what he supposed the law to be without having read what the Supreme Court had said. Had he but read the opinion for the majority in Roe v. Wade, he would have known that the fetus in this case was not a person whose life state law could legally protect. If a state may not legislate for the protection and preservation of the life of such a fetus, it surely cannot make the surgical severance of the fetus from the womb murder under state law. But the prosecutor here sought and obtained an indictment for murder as well as an indictment for performing an illegal abortion, when that, too, was clearly foreclosed by Roe v. Wade."