"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."
Roe v. Wade

January 1, 1970

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