The opinion
Conley Byrd, Justice, dissenting. I disagree with so much of the majority opinion that holds that appellant, a layman, has no standing to attack the constitutionality of our abortion Statute, Ark. Stat. Ann. § 41-303 (Supp. 1971). That statute provides:
“It shall be unlawful for any one 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 ($1,000.00), and imprisoned in the penitentiary not less than (1) nor more than [5] years.”
The Texas statute involved in Roe v. Wade, 410 U.S. 113 , 93 S. Ct. 705 , 35 L. Ed. 2d 147 (1973), provided:
“Ardele 1191. Abortion
“If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or intermally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.”
“Article 1196. By medical advice
“Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”
Justice Blackmun in delivering the majority opinion stated:
“Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be stricken separately, for then the State is left with a statute proscribing all abortion procedures no matter how urgent the case.”
I can find nothing in Borchert v. Scott, 248 Ark. 1050 -H, 460 S.W. 2d 28 (1970), to support the majority position here. There the issue was whether the act was severable and the matter was stated in this language:
“When this case was before us on direct appeal we held the Documentary Tax Stamp Act, being Act 239 of 1969, unconstitutional and void under Amendment 20 to the Constitution of Arkansas. Borchert v. Scott, et al, 248 Ark. 1041 , 460 S.W. 2d 28 (1970). We have again considered the case on rehearing and have concluded that the Act is severable and that portions of it are constitutional and valid. In reappraising the intent of the legislature in enacting Act 239, we conclude that we cannot say the legislature would not have passed Act 239 without § 6 or subsections (b), (2) and (3) written. . . .”
Here, Ark. Stat. Ann. § 41-303 provides that, “any person offending against the provisions of this Section shall be fined in any sum not to exceed one thousand dollars ($1,000.00), and imprisoned in the penitentiary not less than (1) nor more than [5] years.” The first portion thereof makes it unlawful “for anyone ... to produce an abortion.” No exception is made for any physician and as pointed out in Roe v. Wade, supra, it appears to me that the statute, as a unit, must fall with its unconstitutionality.
Our statute as written makes no distinction as to the occupations of persons prohibited. Thus, it appears to me that appellant has a standing to complain that the statute is being unequally applied to him when it cannot be validly applied to other persons within the class that is prohibited.
For the reasons stated, I respectfully dissent to that portion of the opinion upholding the validity of the statute.