Appellant
Aldo Colautti
Appellee
John Franklin, M.D.
Appellant's Claim
That a Pennsylvania statute dealing with abortion and the viability of fetuses was not unconstitutionally vague.
Chief Lawyer for Appellant
Carol Los Mansmann
Chief Lawyer for Appellee
Roland Morris
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Lewis F. Powell, Jr., John Paul Stevens, Potter Stewart
Justices Dissenting
Warren E. Burger, William H. Rehnquist, Byron R. White
Place
Washington, D.C.
Date of Decision
9 January 1979
Decision
Affirmed the judgment of the district court that the viability-determinationrequirement of the Pennsylvania Abortion Control Act was void due to vagueness. The law's standard-of-care provision was also found to be impermissibly vague.
Significance
Colautti v. Franklin was one of the many Supreme Court decisions madebetween 1976 and 1986 that struck down state laws that attempted to discourage abortion.
The Pennsylvania Abortion Control Act was passed by the Pennsylvania legislature, over the governor's veto, in 1974, the year after the Supreme Court's decision in Roe v. Wade (1973). The Pennsylvania Abortion Control Act held a physician to potential criminal liability if he or she performed an abortion and failed to use a technique prescribed by law when the fetus is viableor when there is sufficient reason to believe that the fetus may be viable.Section 5(a) of the act stated that if the fetus was or may be viable, the person performing the abortion was required to exercise the same care to preserve the life and health of the fetus as would be required in the case of a fetus intended to be born alive. The person performing the abortion was also required to adopt the abortion technique providing the best opportunity for thefetus to be aborted alive, so long as a different technique was not necessaryto preserve the life or health of the mother.
A three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania declared that section 5(a) of the act was unconstitutionally vague, overly broad, and forbade the enforcement of the law. Each side of the casesought a class-action determination and the apellant's motion to this effectwas granted. The case went to trial in January of 1975. Expert witnesses testified about all aspects of abortion procedures. The court upheld some of theacts provisions and found others unconstitutional. It invalidated the viability-determination and standard-of-care provisions of section 5(a).
A Specific Definition of Viability
Justice Blackmun, in his opinion for the majority, noted that three previousSupreme Court cases provided essential background for Colautti v. Franklin. These cases were Roe v. Wade (1973), Doe v. Bolton (1973), and Planned Parenthood of Central Missouri v. Danforth (1976). In Roe v. Wade, the Court held that a fetus is considered viable if it is potentially able to live outside its mother's womb, albeit with artificial aid. The Court also noted that viability is usually placed at about seven months(28 weeks) but may occur earlier, even at 24 weeks. The Court intentionallyleft this point flexible for anticipated advancements in medicine. Roe v.Wade also stressed repeatedly that the physician has the central role inconsulting with the woman about an abortion.
In Doe v. Bolton, the Court found it critical that a physician's judgment about an abortion may be exercised in the light of all factors--physical,emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient.
In Planned Parenthood of Central Missouri v. Danforth, the Court stressed that viability is a matter of medical judgment, skill, and technical ability requiring the meaning of the word to be flexible. The Court refused to specify an exact number of weeks of pregnancy that would be the point of viability.
In Colautti v. Franklin, the Court once again refused to give a specific definition of viability, except to state that viability is reached when, in the judgment of the attending physician on the particular facts of the casebefore him, there is a reasonable likelihood of the fetus sustaining survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither legislature nor the courts may proclaimone of the elements such as weeks of gestation or fetal weight as the determining factor of viability or when the state should take an interest in the life of the fetus.
Dr. Franklin argued that requiring the physician to observe the care standardwhen he determines the fetus is viable, or when there is sufficient reason to believe that the fetus may be viable, is unconstitutionally vague. The viability-determination requirement is vague because it fails to inform the physician when his duty to the fetus arises. It also does not make the physician'sgood-faith determination of viability conclusive. It is constitutionally overbroad because it carves out a new time period prior to the stage of viability. This could restrict couples who want an abortion because the fetus is nothealthy. The standard of care, particularly the requirement regarding the useof the technique which was most likely to abort the fetus alive, is void dueto vagueness and unconstitutionally restrictive because it does not allow the physician enough discretion to determine which abortion technique is appropriate.
Aldo Colautti, the secretary of welfare for Pennsylvania, argued that the Pennsylvania statute deals only with post-viability abortions. The term "may beviable" describes the statistical probability of fetal survival. He felt thatthe standard of care provision preserves the flexibility required for soundmedical practice. He also noted that the provision simply requires that whena physician has a choice of procedures of equal risk to the woman, the doctormust choose the one least likely to be fatal to the fetus.
The majority of the Court agreed with Dr. Franklin that the viability-determination requirement was ambiguous and void because of vagueness. The statute required that a person who performs an abortion make a determination based onhis experience, judgment, or professional competence that the fetus is not viable. The statute did not clarify if this decision should be based on a purely subjective standard or on a mixture of the subjective and objective. The term "may be viable" was unclear as to whether it referred to viability as defined in previous cases or if it meant an undefined gray area prior to the stage of viability. In the phrase "sufficient reason to believe that the fetus may be viable," the term "sufficient reason" was ambiguous as to whether it wasfrom the perspective of the attending physician or a cross section of the medical community. Also, the distinction between "is viable" and "may be viable" was elusive. For these reasons, the statute did not give broad discretion to the physician. It conditioned possible criminal liability on confusing andambiguous criteria. It therefore presented serious problems of notice, discriminatory application, and a "chilling effect" on the exercise of constitutional rights.
The vagueness of the viability-determination requirement was compounded by the fact that the physician was subject to possible criminal liability withoutregard to fault. The Court felt the act was little more than a trap for thosewho act in good faith. The dangers of criminal liability were great here because of the ambiguity of the viability determination. A number of imprecise variables must be considered when attempting to determine the probability of meaningful life outside the womb. Thus this can only be determined with greatdifficulty. The fact that experts will disagree over the determination will have a chilling effect on the willingness of physicians to perform abortions near the point of viability. State regulation that impinges upon this determination, if it is to be constitutional, must let the physician make his or herbest medical judgment.
The Court also concluded that the standard-of-care provision of the act was impermissibly vague. Extensive testimony by physicians revealed that in the absence of section 5(a), they would choose a saline amino-infusion for a secondtrimester abortion. Their method of choice under 5(a) varied widely, but they generally agreed that each method had disadvantages for the woman.
Colautti argued that the only legally relevant consideration was that alternatives exist among abortion methods. He also felt that the physician must makea competent and good faith medical judgment on the feasibility of protectingthe fetus's chance of survival, consistent with the life and health of the woman. The Court noted that the statute does not clearly specify that the woman's life and health must always come first. Also, life and health of the mother does not necessarily imply that all factors relevant to the welfare of thewoman may be taken into account by the physician. It was unclear whether thephysician's duty to the patient or the fetus was more important. Physicianswere not certain if the statute required a trade-off between the woman's health and the additional percentage points of fetal survival. The Court concluded that the standard of care provision of the statute was void because of thisvagueness.
An Intrusion upon the Police Powers of the States
Justice White, writing the dissent, felt that the Court had now withdrawn from the states a substantial measure of power to protect fetal life. "Only those with unalterable determination to invalidate the Pennsylvania Act can drawany measurable difference insofar as vagueness is concerned between `viability' defined as the ability to survive and `viability' defined as that stage atwhich the fetus may have the ability to survive." White noted that the majority's decision was constitutionally an unwarranted intrusion upon the policepowers of the states. Regarding the potential criminal liability of physicians, White commented, "I do not see how it can be seriously argued that a doctor who makes a good-faith mistake about whether a fetus is or is not viable could be successfully prosecuted for criminal homicide." White concluded his dissent by stating that the majority decision in this case issued a "warning tothe States, in the name of vagueness, that they should not attempt to forbidor regulate abortions when there is a chance for the survival of the fetus,but it is not sufficiently large that the abortionist considers the fetus tobe viable."
Impact
Some states designed laws, not to take away the choice of having an abortion,but to discourage abortions. Among these statutes were laws that prohibitedcertain abortion techniques, required patient counseling, established a waiting period, or required that abortions be performed in hospitals rather than clinics. Several Supreme Court decisions between 1976 and 1986 overturned these provisions on the grounds of vagueness or unreasonableness. In 1980, the anti-abortion movement played a pivotal role in the election of Ronald Reagan to the presidency. Reagan had promised to appoint Supreme Court justices who would make abortions illegal. In 1986, Reagan elevated William H. Rehnquist, an abortion foe, to the position of chief justice. In 1989, the case Webster v. Reproductive Health Services represented a significant retreat fromabortion rights. That decision upheld a Missouri law that required viabilitytesting in abortion cases after 20 weeks. The Webster case was only one vote short of overturning Roe v. Wade. In the 1990s, constitutionaldoctrine regarding abortion continued to be unstable and politicized.
Related Cases
Aldo Colautti
Appellee
John Franklin, M.D.
Appellant's Claim
That a Pennsylvania statute dealing with abortion and the viability of fetuses was not unconstitutionally vague.
Chief Lawyer for Appellant
Carol Los Mansmann
Chief Lawyer for Appellee
Roland Morris
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Lewis F. Powell, Jr., John Paul Stevens, Potter Stewart
Justices Dissenting
Warren E. Burger, William H. Rehnquist, Byron R. White
Place
Washington, D.C.
Date of Decision
9 January 1979
Decision
Affirmed the judgment of the district court that the viability-determinationrequirement of the Pennsylvania Abortion Control Act was void due to vagueness. The law's standard-of-care provision was also found to be impermissibly vague.
Significance
Colautti v. Franklin was one of the many Supreme Court decisions madebetween 1976 and 1986 that struck down state laws that attempted to discourage abortion.
The Pennsylvania Abortion Control Act was passed by the Pennsylvania legislature, over the governor's veto, in 1974, the year after the Supreme Court's decision in Roe v. Wade (1973). The Pennsylvania Abortion Control Act held a physician to potential criminal liability if he or she performed an abortion and failed to use a technique prescribed by law when the fetus is viableor when there is sufficient reason to believe that the fetus may be viable.Section 5(a) of the act stated that if the fetus was or may be viable, the person performing the abortion was required to exercise the same care to preserve the life and health of the fetus as would be required in the case of a fetus intended to be born alive. The person performing the abortion was also required to adopt the abortion technique providing the best opportunity for thefetus to be aborted alive, so long as a different technique was not necessaryto preserve the life or health of the mother.
A three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania declared that section 5(a) of the act was unconstitutionally vague, overly broad, and forbade the enforcement of the law. Each side of the casesought a class-action determination and the apellant's motion to this effectwas granted. The case went to trial in January of 1975. Expert witnesses testified about all aspects of abortion procedures. The court upheld some of theacts provisions and found others unconstitutional. It invalidated the viability-determination and standard-of-care provisions of section 5(a).
A Specific Definition of Viability
Justice Blackmun, in his opinion for the majority, noted that three previousSupreme Court cases provided essential background for Colautti v. Franklin. These cases were Roe v. Wade (1973), Doe v. Bolton (1973), and Planned Parenthood of Central Missouri v. Danforth (1976). In Roe v. Wade, the Court held that a fetus is considered viable if it is potentially able to live outside its mother's womb, albeit with artificial aid. The Court also noted that viability is usually placed at about seven months(28 weeks) but may occur earlier, even at 24 weeks. The Court intentionallyleft this point flexible for anticipated advancements in medicine. Roe v.Wade also stressed repeatedly that the physician has the central role inconsulting with the woman about an abortion.
In Doe v. Bolton, the Court found it critical that a physician's judgment about an abortion may be exercised in the light of all factors--physical,emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient.
In Planned Parenthood of Central Missouri v. Danforth, the Court stressed that viability is a matter of medical judgment, skill, and technical ability requiring the meaning of the word to be flexible. The Court refused to specify an exact number of weeks of pregnancy that would be the point of viability.
In Colautti v. Franklin, the Court once again refused to give a specific definition of viability, except to state that viability is reached when, in the judgment of the attending physician on the particular facts of the casebefore him, there is a reasonable likelihood of the fetus sustaining survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither legislature nor the courts may proclaimone of the elements such as weeks of gestation or fetal weight as the determining factor of viability or when the state should take an interest in the life of the fetus.
Dr. Franklin argued that requiring the physician to observe the care standardwhen he determines the fetus is viable, or when there is sufficient reason to believe that the fetus may be viable, is unconstitutionally vague. The viability-determination requirement is vague because it fails to inform the physician when his duty to the fetus arises. It also does not make the physician'sgood-faith determination of viability conclusive. It is constitutionally overbroad because it carves out a new time period prior to the stage of viability. This could restrict couples who want an abortion because the fetus is nothealthy. The standard of care, particularly the requirement regarding the useof the technique which was most likely to abort the fetus alive, is void dueto vagueness and unconstitutionally restrictive because it does not allow the physician enough discretion to determine which abortion technique is appropriate.
Aldo Colautti, the secretary of welfare for Pennsylvania, argued that the Pennsylvania statute deals only with post-viability abortions. The term "may beviable" describes the statistical probability of fetal survival. He felt thatthe standard of care provision preserves the flexibility required for soundmedical practice. He also noted that the provision simply requires that whena physician has a choice of procedures of equal risk to the woman, the doctormust choose the one least likely to be fatal to the fetus.
The majority of the Court agreed with Dr. Franklin that the viability-determination requirement was ambiguous and void because of vagueness. The statute required that a person who performs an abortion make a determination based onhis experience, judgment, or professional competence that the fetus is not viable. The statute did not clarify if this decision should be based on a purely subjective standard or on a mixture of the subjective and objective. The term "may be viable" was unclear as to whether it referred to viability as defined in previous cases or if it meant an undefined gray area prior to the stage of viability. In the phrase "sufficient reason to believe that the fetus may be viable," the term "sufficient reason" was ambiguous as to whether it wasfrom the perspective of the attending physician or a cross section of the medical community. Also, the distinction between "is viable" and "may be viable" was elusive. For these reasons, the statute did not give broad discretion to the physician. It conditioned possible criminal liability on confusing andambiguous criteria. It therefore presented serious problems of notice, discriminatory application, and a "chilling effect" on the exercise of constitutional rights.
The vagueness of the viability-determination requirement was compounded by the fact that the physician was subject to possible criminal liability withoutregard to fault. The Court felt the act was little more than a trap for thosewho act in good faith. The dangers of criminal liability were great here because of the ambiguity of the viability determination. A number of imprecise variables must be considered when attempting to determine the probability of meaningful life outside the womb. Thus this can only be determined with greatdifficulty. The fact that experts will disagree over the determination will have a chilling effect on the willingness of physicians to perform abortions near the point of viability. State regulation that impinges upon this determination, if it is to be constitutional, must let the physician make his or herbest medical judgment.
The Court also concluded that the standard-of-care provision of the act was impermissibly vague. Extensive testimony by physicians revealed that in the absence of section 5(a), they would choose a saline amino-infusion for a secondtrimester abortion. Their method of choice under 5(a) varied widely, but they generally agreed that each method had disadvantages for the woman.
Colautti argued that the only legally relevant consideration was that alternatives exist among abortion methods. He also felt that the physician must makea competent and good faith medical judgment on the feasibility of protectingthe fetus's chance of survival, consistent with the life and health of the woman. The Court noted that the statute does not clearly specify that the woman's life and health must always come first. Also, life and health of the mother does not necessarily imply that all factors relevant to the welfare of thewoman may be taken into account by the physician. It was unclear whether thephysician's duty to the patient or the fetus was more important. Physicianswere not certain if the statute required a trade-off between the woman's health and the additional percentage points of fetal survival. The Court concluded that the standard of care provision of the statute was void because of thisvagueness.
An Intrusion upon the Police Powers of the States
Justice White, writing the dissent, felt that the Court had now withdrawn from the states a substantial measure of power to protect fetal life. "Only those with unalterable determination to invalidate the Pennsylvania Act can drawany measurable difference insofar as vagueness is concerned between `viability' defined as the ability to survive and `viability' defined as that stage atwhich the fetus may have the ability to survive." White noted that the majority's decision was constitutionally an unwarranted intrusion upon the policepowers of the states. Regarding the potential criminal liability of physicians, White commented, "I do not see how it can be seriously argued that a doctor who makes a good-faith mistake about whether a fetus is or is not viable could be successfully prosecuted for criminal homicide." White concluded his dissent by stating that the majority decision in this case issued a "warning tothe States, in the name of vagueness, that they should not attempt to forbidor regulate abortions when there is a chance for the survival of the fetus,but it is not sufficiently large that the abortionist considers the fetus tobe viable."
Impact
Some states designed laws, not to take away the choice of having an abortion,but to discourage abortions. Among these statutes were laws that prohibitedcertain abortion techniques, required patient counseling, established a waiting period, or required that abortions be performed in hospitals rather than clinics. Several Supreme Court decisions between 1976 and 1986 overturned these provisions on the grounds of vagueness or unreasonableness. In 1980, the anti-abortion movement played a pivotal role in the election of Ronald Reagan to the presidency. Reagan had promised to appoint Supreme Court justices who would make abortions illegal. In 1986, Reagan elevated William H. Rehnquist, an abortion foe, to the position of chief justice. In 1989, the case Webster v. Reproductive Health Services represented a significant retreat fromabortion rights. That decision upheld a Missouri law that required viabilitytesting in abortion cases after 20 weeks. The Webster case was only one vote short of overturning Roe v. Wade. In the 1990s, constitutionaldoctrine regarding abortion continued to be unstable and politicized.
Related Cases
- Roe v. Wade, 410 U.S. 113 (1973).
- Doe v. Bolton, 410 U.S. 179 (1973).
- Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
- Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
Further Readings
- Gans Epner, Janet E., Harry S. Jonas, and Daniel L. Seckinger. "Late-Term Abortion." Journal of the American Medical Association, August 26, 1998, p. 724.
- Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of theUnited States. New York: Oxford Press, 1992.
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