Thе jurisdiction of the district court has been invoked in this case pursuant to the provisions of 28 U.S.C. §§ 1343(3), 2201, 2202, 2281 and 2284. The plaintiffs’ claim for injunctive relief is premised on the substantive provisions of 42 U.S.C. § 1983. The plaintiffs in this action, desiring to provide clinical abortion services upon request, challenge the constitutionality of Ark.Stat.Ann. §§ 41-2551 — 41-2560 (Crim. Code 1976), Arkansas’ criminal abortion statutes.
1
Following the commencement of this suit the defendants were enjoined from enforcing, or attempting to enforce, the challenged statutes with respect to the plaintiffs, their agents, servants and employees
2
and a three-judge district court was empaneled for the purpose of resolving the merits of the plaintiffs’ constitutional claims.
3
The factual and legal positions of the parties have been clarified by the submission of a stipulated set of facts and briefs in support of their respective positions. The plaintiffs’ position, succinctly stated, is that Arkansas’ criminal abortion statutes are unconstitutiоnal by virtue of United States Supreme Court decisions which have dealt with state abortion laws similar to those of Arkansas. The plaintiffs, stressing alleged similarities between the challenged statutory provisions and the Texas statutes invalidated en masse by the Court in
Roe v. Wade,
I.
STANDING
We cannot address the plaintiffs’ contentions without first determining whether the plaintiffs have standing to challenge the constitutionality of each of the statutory provisions questioned by this suit. Analysis of the plaintiffs’ standing entails a twofold inquiry. First, we must consider whether the plaintiffs have alleged “injury in fact”. The plaintiffs can satisfy the “injury in fact” standard only if they have a sufficiently concrete interest in the outcome of their suit to make it a case or controversy within the jurisdictional limitations of Art. III.
Singleton v. Wulff,
The parties have stipulated the following facts: Plaintiff Mose Smith, III, is a duly licensed physician in the State of Arkansas. He is also a diplómate of the American Board of Obstetrics and Gynecology. Little Rock Pregnancy Counseling Service, Inc., is a professional corporation licensed under the laws of the Stаte of Arkansas. All of the members of Little Rock Pregnancy Counseling Service, Inc., are physicians who are licensed to practice medicine in Arkansas. The plaintiffs, with the assistance of their agents and employees, perform abortions on demand pursuant to the provisions of this court’s order of February 17, 1976, restraining enforcement of Ark.Stat.Ann. §§ 41-2551 — 2560 (Crim. Code 1976). The performance of abortions by the plaintiffs would, in the absence of this court’s order of January 17, 1976, be violative of the penal provisions of Ark.Stat.Ann. §§ 41-2551 — 2560 (Crim. Code 1976). The plaintiffs perform abortions on demand during the first trimester of pregnancy. The plaintiffs perform abortions during the first trimester of pregnancy without regard to the criteria for “legal abortions” established in Ark.Stat.Ann. § 41-2554 (Crim. Code 1976). First trimester abortions are performed by the plaintiffs on an out-patient basis at an out-patient clinic operated by Little Rock Pregnancy Counseling Service, Inc. Contrary to the requirements of Ark. Stat.Ann. § 41-2557, the plaintiffs do not perform first trimester abortions in a hospital licensed by the Arkansas State Board of Health and accredited by the Joint Commission of Accreditation of Hospitals. Despite the plaintiffs’ failure to observé the requirements of Ark.Stat.Ann. § 41-2557 with respect to abortions performed during the first trimester of pregnancy, the medical procedures utilized by the plaintiffs in the termination of pregnancies comply with the nationally accepted medical principles and the American Medical Association, the *920 Arkansas Medical Society and the American College of Obstretricians and Gynecologists. The plaintiffs induce abortions during the first trimester of pregnancy by means of “uterine asporation”. Since uterine asporation does not involve the use of a general anesthetic the procedure is medically safer than a procedure which requires the use of a general anesthetic. Abortions performed during the first trimester of pregnancy by means of uterine asporation present less medical risk to the mother’s life than that presented by actual childbirth. Utilization of the uterine asporation procedure enables the plaintiffs to provide women with a safer and less costly means of abortion during the first trimester of pregnancy. The plaintiffs perform abortions during the second and third trimesters of pregnancy consistent with good medical practice. The plaintiffs use their best medical judgment to determine whether an abortion during the second and third trimesters of pregnancy should be performed in a hospital and under what medical conditions. The plaintiffs employ medically trained personnel such as nurses and assistants to assist in the performance of abortive operations. The participation of the plaintiffs’ personnel is limited, however, to the performance of those duties which are within the scope of their medical training. The performance of the actual medical procedures necessary to effectuate, an abortion are carried out by a licensed physician. The plaintiffs have also employed various people to counsel women who seek abortions. These counselors advise women of their rights relative to the procurement of an abortion, the procedures involved and the alternatives to abortion. The plaintiffs, in order to provide information about their services, have prepared a brochure which has been distributed to nonprofit agencies involved with family planning. The plaintiffs intend to openly advertise their services to the public in a manner not otherwise prohibited by the laws and regulations of the United States and the State of Arkansas. The plaintiffs’ advertisements of their abortion services would constitute a violation of the provisions of Ark.Stat.Ann. § 41-2552 in the absence of this court’s order of February 17, 1976. The plaintiffs also intend to render, and in fact are now rendering, abortion services in a manner which violates other provisions of Arkansas’ abortion statutes. As an example, the plaintiffs deliver, and intend to continue delivering, abortion services in a manner which is inconsistent with the consent requirements set out in Ark. StatAnn. § 41-2555. When a minor seeks or requests an abortion the plaintiffs will not terminate the pregnancy unless the minor involved knowingly and understandingly consents to the performance of the abortion. The plaintiffs also intend to perform abortions without observing the residency requirements set out in Ark.Stat.Ann. § 41-2556 and without filing the certificates required by Ark.Stat.Ann. §§ 41-2558 and 2559. It is against this undisputed and stipulated factual background that we must determine the plaintiffs’ standing to litigate the constitutionality of each of the statutory provisions challenged by the plaintiffs’ complaint.
As the United States Supreme Court recently stated in the case of
County Court of Ulster County, New York v. Allen,
II.
Ark.Stats.Ann. §§ 41-2551 and 41-2552
Ark.Stats.Ann. § 41-2551 defines abortion and provides for the imposition of criminal penalties, a fine of not more than $1,000 and imprisonment for not less than one year nor more than five years, for a violation of the statute. Ark.Stats.Ann. § 41-2552 provides criminal penalties, a fine of not less than $1,000 and imprisonment in the county jail for not less than six (6) months nor more than twelve (12) months, for knowingly advertising the means of obtaining an abortion. We find it unnecessary, for the reasons stated below, to address the plaintiffs’ claims that these statutes are constitutionally defective.
Federal courts are under a duty to avoid the adjudication of constitutional issues which need not be decided to resolve the rights of the litigants to a suit. The policy against adjudication of unnecessary constitutional questions requires federal courts to resolve the rights of parties before them on nonconstitutional grounds where the rights of the litigants can be determined without resort to the constitutional bases. The policy against unnecessary constitutional adjudication was recently expressed by the Court in
County Court of Ulster County, New York v. Allen,
Although it is not favored, the Arkansas Supreme Court has recognized the doctrine of “repeal by implication”.
Mears v. Arkansas State Hospital,
III.
Ark.Stats.Ann. § 41-2553
Section one of Act 61 of 1969, as previously stated, is codified as Ark.Stats.Ann. § 41-2553. The statute provides as follows:
“It shall be unlawful for anyone to administer or prescribe any medicine or drugs to any woman with child, with the intent to produce an abortion, or premature delivery of any foetus before or after the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provisions of this Section shall be fined in any sum not to exceed one thousand dollars ($1,000), and imprisoned in the penitentiary not less than [one] (1) nor more than five (5) years.”
The plaintiffs contend that this statute, on its face and as applied to them, unconstitutionally infringes the plaintiffs’ right to use their best medical judgment in the termination of pregnancies during the first trimester of pregnancy when the woman consents to such a procedure. Alternatively, the plaintiffs argue that the statute is overly broad since the statute, on its face, does not exclude abortions performed by physicians prior to the time when the fetus becomes “viable” from its prohibitive ambit. The plaintiffs further contend that the statute impermissibly restricts their patients’ right to personal and marital privacy. In *925 essence the plaintiffs assert that the State of Arkansas has exceeded the bounds of its authority to regulate the abortion decision.
The United States Supreme Court’s landmark decision in
Roe v. Wade,
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnanсy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(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 and health of the mother.
2. The State may define the term “physician” as it has been employed in the preceding paragraphs Part XI of this opinion, to mean only a physician licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. 410 U.S. at pp. 164-65,93 S.Ct. at p. 732 .
Under the rationale of Roe a pregnant female has a freedom to choose whether to terminate the pregnancy, with few restrictions, during the first trimester or early stages of pregnancy. As the pregnancy progresses, however, the states’ legitimate interest in the abortion decision becomes increasingly apparent until, at the point where the fetus attains “viability” or is capable of existing outside of the mother’s womb, the states’ interest overtakes and, indeed, may be so strong as to deprive the pregnant female of any election to abort. The gist of the Roe decision is that the states have a greater interest, and hence greater constitutional justification, in regulating the abortion decision itself and the means of effectuating the decision during the pоst-viability or later stages of pregnancy than in the previability or earlier stages of pregnancy.
The difficulty with Ark.Stat. Ann. § 41-2553 stems from the fact that the statute, as written, exceeds the State’s authority to regulate the abortion decision and the means of effectuating the decision during the early stages of pregnancy. The statute, by its own terms, applies to “anyone”. Ostensibly, the term “anyone” includes licensed physicians such as the plaintiffs. While dicta in one Arkansas Supreme Court decision intimates that the application of the statute may be circumscribed in terms of its application to physicians who perform abortions prior to the time when
*926
the fetus becomes viable
9
, no Arkansas decision expressly excludes physicians from the statute’s prohibitions or delineates the circumstances which would subject a physician to criminal liability for the performance of an abortion. The statutory phrase “before or after the period of quickening”
10
provides no real assistance in determining when a physician might be subject to exposure in terms of criminal liability for the performance of an abortion after the
Roe
decision. To the contrary, the phrase “before or after the period of quickening” impermissibly extends the State’s authority to regulate physician induced abortions to include that period of pregnancy which precedes the point at which the fetus becomes viable. If the State of Arkansas desires to subject physicians to criminal liability for the performance of abortions after a fetus has become viable, it must identify, with specificity, the point at which criminal liability would attach. Otherwise, a physician would be deprived of fair notice of the conduct prohibited by the statute, a result which would offend the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
United States v. Harriss,
“ . . . the rationale of our decision supports continued enforceability of criminal abortion statutes against nonphysicians. Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State’s interest in maternal health is predicated upon the first trimester’s abortion being аs safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. Even during the first trimester of pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against State interference. And after the first trimester the ever-increasing state interest in maternal health provides additional justification for such prosecutions.”423 U.S. at p. 10 ,96 S.Ct. at p. 171 .
IV.
Ark.Stats.Ann. §§ 41 — 2554—41-2559
Ark.Stats.Ann. § 41-2554, which is based on section two of Act 61 of 1969, specifies the “conditions” which make abortion legal. The statute excludes from the definition of criminal abortion those abortions which are performed by a licensed Arkansas physician but only in those cases where the physician can “reasonably establish”: (1) that there is a substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the mother; (2) there is a substantial risk that the child would be born with grave physical or mental defect; and (3) the pregnancy resulted from rape or incest which was reported to the Prosecuting Attorney or his deputy within seven (7) days after the alleged rape or incestuous act. Ark.Stats.Ann. § 41-2555, the codified version of section three of Act 61 of 1969, delineates the consent required for a legal abortion. Ark.Stats.Ann. § 41-2556, which is based on section 4 of Act 61 of 1969, sets out the residency requirement which must be met before a legal abortion can be performed. Ark.Stats.Ann. § 41-2557 restricts the place where so-called legal abortions can be performed. The statute requires legal abortions to be performed only in hospitals licensed by the Arkansas State Board of Health and accredited by the Joint Commission of Accreditation of Hospitals. Ark. Stats.Ann. §§ 41-2558 and 41-2559 are derived from sections six and seven, respectively, of Act 61 of 1969. These statutes relate to requirements that physicians file certificates justifying an abortion before an abortion is performed or shortly thereafter in cases where an emergency exists. All of these statutes, Ark.Stats.Ann. §§ 41-2554— 41-2559, deal with conditions which make abortions legal or restrictions which relate to the performance of legal abortions. Inasmuch as the statutes are closely connected in terms of subject matter and apply only to physicians, we cannot presume that the Arkansas General Assembly would have enacted any one of these provisions without the others. We therefore find that Ark. Stats.Ann. §§ 41-2554 — 41-2559, sections two through seven of Act 61 of 1969, are not severable. Accordingly, if any one of these provisions violates the United States Constitution, these statutes must fall as a unit. Borchert v. Scott, supra, n. 5.
In the case of
Doe v. Bolton,
Ark.Stat.Ann. § 41-2555 states that: “No legal abortion may be performed until the pregnant woman has given written consent for said abortion to be performed, and if said woman shall be a minor or incompetent as adjudicated by any court of competent jurisdiction then only after permission is given in writing by the parents, or if married, her husband, guardian or person or persons standing in loco parentis to said minor or incоmpetent.” If the consent provisions of Ark.Stat.Ann. § 41— 2555 were severable from the other provisions which impose restrictions on the performance of legal abortions under Arkansas law, Ark.Stat.Ann. §§ 41-2556 — 59, we would have no difficulty sustaining the validity of the first portion of § 41-2555. The United States Supreme Court has recognized that the decision to abort is important and often stressful and has stated that the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman’s prior written consent.
Planned Parenthood of Missouri v. Danforth,
In view of our conclusions as to the deficiencies in Ark.Stat.Ann. §§ 41-2554, 2555, 'we need not engage in an extended discussion of Ark.Stat.Ann. §§ 41-2556 — 2559. It is sufficient to observe that similar provisions were scrutinized by the Court in
Doe v. Bolton,
supra, 410 U.S. at pp. 192-200,
V.
CONCLUSION
We repeat and summarize our conclusions in the present case as follows:
(1) Ark.Stats.Ann. §§ 41-2551 and 41-2552, sections one and two of Act 4 of 1875, have been repealed by implication by the enactment of Act 61 of 1969, Ark.Stats. Ann. §§ 41-2553 — 41-2560.
(2) Ark.Stats.Ann. § 41-2553, as written and construed by Arkansas’ highest court, cannot be constitutionally applied to physicians. Nor is § 41-2553 capable of being construed in such a manner аs to render the statute constitutional in terms of its application to physicians.
(3) Ark.Stats.Ann. § 41-2554 impermissibly attempts to restrict the number of reasons which justify an abortion and therefore infringes a pregnant woman’s right to privacy. § 41-2554 is unconstitutional since the statute limits the reasons for an abortion even during the first trimester of pregnancy.
(4) The consent provisions of Ark.Stats. Ann. § 41-2555 are unconstitutional since those provisions cannot be severed from the other statutory restrictions which are placed on the performance of legal abortions.
(5) The residency requirement of Ark. Stats.Ann. § 41-2556 is unconstitutional since the statute violates the Privileges and Immunity Clause.
(6) Ark.Stats.Ann. § 41-2557, which requires legal abortions to be performed only in hospitals licensed by the Arkansas State Board of Health and be the Joint Commission of Accreditation of Hospitals, impermissibly burdens the abortion decision during the first trimester of pregnancy.
(7) The certificate requirements of Ark. Stats.Ann. §§ 41-2558 and 41-2559 unduly restrict a pregnant female’s decision to abort and impermissibly burden her physician’s right to practice.
A permanent injunction will issue in accordance with the findings and conclusions expressed herein.
APPENDIX
Ark.Stat.Ann. § 41-2551. Abortion defined — Penalty.
*930 Ark.Stat.Ann. § 41-2552. Advertising means of producing abortion — Penalty.
Ark.Stat.Ann. § 41-2553. Unlawful to induce abortion by use of medicine or drugs or by any other means — Penalty.
Ark.Stat.Ann. § 41 — 2554. Conditions which make abortion legal.
Ark.Stat.Ann. § 41-2555. Consent required for legal abortion.
Ark.Stat.Ann. § 41-2556. Residence requirement for legal abortion — Exception.
Ark.Stat.Ann. § 41-2557. Restriction on where legal abortions may be performed.
Ark.Stat.Ann. § 41-2558. Filing of certificate justifying abortion prior to performance.
Ark.Stat.Ann. § 41-2559. Filing of certificate after abortion performed — Emergency.
Ark.Stat.Ann. § 41-2560. Immunity from civil liability of persons who refuse to participate in or perform abortions.
Notes
. The language of each of the challenged statutory provisions is set out in the “Appendix” to this opinion.
. The late Terry L. Shell, United States District Judge for the Eástem and Western Districts of Arkansas, enjoined enforсement of the challenged statutes by order dated February 17, 1976. The order, by agreement of the parties to this lawsuit, has continued unabated since the date the order was entered.
. The plaintiffs filed this action on February 6, 1976. At the time of the commencement of the suit there was in effect a federal statute, 28 U.S.C. § 2281, which provided that an interlocutory or permanent injunction restraining the enforcement, operation or execution of a State statute on the ground the statute is unconstitutional should not be granted unless the application has been heard and determined by a three-judge district court. Congress repealed 28 U.S.C. § 2281 after the commencement of this action. The repeal of the statute does not render the merits of this suit inappropriate for a three-judge district court, however, since the repealing provision, by its terms, did not apply to actions commenced on or before August 12, 1976. Act of August 12, 1976, Pub.L.No. 94-381, §§ 1, 7, 90 Stat. 1119.
. Although there were not any prosecutions pending or initiated against the plaintiffs, their agents or employees prior to this court’s order enjoining the enforcement of the statutes attacked by the plaintiffs, a significant threat of prosecution existed at the time the initial injunction issued. See paragraph 4 of the “Stipulation” filed by the parties on August 23, 1976 and paragraph 2 of the “Amended Stipulation” filed by the parties on August 30, 1976. There has not been any intervening State legislative or judicial action which would lead us to conclude that the prospect of prosecution under the State laws challenged by the plaintiffs has been diminished. Indeed, with the exception of the plaintiffs, their agents and employees, the Arkansas statutes challenged by the plaintiffs remain in full force. In the absence of the order prohibiting enforcement of the statutes, the plaintiffs would likewise be subject to prosecution for conduct falling within the prohibitive scope of the challenged laws. Because of the possibility of a recurrence of the conduct which the plaintiffs seek to avoid, we must conclude that an actual case or controversy exists and that, with respect to the plaintiff, prosecution under the challenged statutes has been negated only by virtue of the interposition of this court’s order banning enforcement.
Allee v. Medrano,
. The plaintiffs do not have standing to litigate the constitutionality of Ark.Stat.Ann. § 41-2560. That statute grants immunity from civil liability to the following classes of persons or entities: (1) persons who refuse to perform or participate in medical procedures which result in the termination of pregnancies; and (2) hospitals, hospital directors or governing boards which refuse to permit the termination of human pregnancies within its institution. The statute also prohibits a person from losing any privileges or immunities to which they would otherwise be entitled for refusing to submit to an abortion or for refusing to consent to an abortion. Finally, the statute prohibits the denial of any public benefits on the basis that a person has refused to submit or consent to an abortion. The interests of the plaintiff physicians and their patients and the interests of the persons or entities who might invoke the immunity granted by § 41-2560 are of course; incongruous. The plaintiffs desire to render abortions without the restraints imposed by statute rather than avoid civil liability for refusing to perform medical procedures which result in the termination. Under these circumstances the plaintiffs’ interests are not arguably within the zone of interests which § 41-2560 seeks to protect. Nor have the plaintiffs been injured by the immunity provisions of § 41-2560. We therefore find that the plaintiffs do not have standing to litigate the constitutionality of Ark.Stats.Ann. § 41-2560.
Association of Data Processing Service Organizations, Inc. v. Camp,
The plaintiffs’ lack of standing to challenge the constitutionality of § 41-2560 does not impair the plaintiffs’ ability to question the validity of Ark.Stats.Ann. §§ 41-2551 — 41-2559. It is our view that Ark.Stats.Ann. § 41-2560 is severable from the other provisions of Arkansas’ abortion statutes. While it is true that § 41-2560 is derived from Section 8 of Act 61 of 1969, that Act 61 contains no severability clause and that Arkansas’ general severability statute applies only to statutes enacted after the effective date of Act 92 of 1973, Ark.Stats. Ann. § 1-207 (Repl.1976), these facts are not dispositive of the question of severability. State law is, of course, controlling on the issue of severability.
Planned Parenthood Association of Missouri v. Danforth,
“An act may be unconstitutional in part and yet be valid as to the remainder. Many cases so hold and the following quotation from Cooley’s Constitutional Limitations appearing in the case of
Oliver v. Southern Trust Co.,
Under these standards for determining sever-ability it is clear that the provisions of § 41-2560 are severable from the provisions of the other statutes challenged by the plaintiffs. Section 2560 deals exclusively with immunity from civil liability or loss of public benefits for refusal to participate in' medical procedures which result in the termination of a pregnancy. This statute is not a penal statute and, unlike the other statutes questioned by the plaintiffs, it does not impose restrictions or conditions on the performance of abortions. Section 2560 merely insulates from civil liability or loss of benefits those persons and institutions which have strong moral or religious objections to abortions. Since the subject matter, application and purpose of § 2560 are substantially different from Ark.Stats.Ann. §§ 41-2553 — 41-2559, the other statutory provisions which make up Act 61 of 1969, we conclude that the Arkansas General Assembly would have passed § 2560 without the other provisions of Act 61.
. Ark.Stats.Ann. § 41-2553, section one of Act 61 of 1969, follows the language of Ark.Stats. Ann. § 41-2551, section one of Act 4 of 1875 except for the deletion of the last phrase in § 41-2551. Section 2553 omits the language “ . . . provided, that this Section shall not apply to any abortion produced by any regular practicing physician for the purpose of saving the mother’s life.”
. Arkansas’ statutory scheme imposes four classes of restrictions on the performance of legal abortions. The restrictions may be summarized as follows: (1) restrictions relating to consent; (2) residency; (3) place of performance; and (4) documentation.
. A review of the cases reported since the enactment of Act 61 of 1969 fails to reveal a single reported case where section one of Act 4 of 1875, Ark.Stats.Ann. § 41-2551, has been used as the basis for an аbortion prosecution. The only significant reported abortion case since the enactment of Act 61 of 1969,
May
v.
State,
. In the case of
May v. State,
. Dorland’s Illustrated Medical Dictionary (25th ed. 1974) defines the term “quiсkening” as the first recognizable movements of the fetus, usually appearing from the sixteenth to eighteenth week of pregnancy.
. In
United States v. Harriss, supra,
Chief Justice Warren outlined the constitutional mandate that criminal statutes specify the conduct prohibited in the following manner: “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”
Id.
at p. 617,