Colautti v. Franklin

Justice Blackmun, in his opinion for the majority, noted that three previous Supreme 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 intentionally left this point flexible for anticipated advancements in medicine. Roe v. Wade also stressed repeatedly that the physician has the central role in consulting 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 case before 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 proclaim one 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 standard when 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's good-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 not healthy. The standard of care, particularly the requirement regarding the use of the technique which was most likely to abort the fetus alive, is void due to 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 be viable" describes the statistical probability of fetal survival. He felt that the standard of care provision preserves the flexibility required for sound medical practice. He also noted that the provision simply requires that when a physician has a choice of procedures of equal risk to the woman, the doctor must 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 on his 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 was from 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 and ambiguous 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 without regard to fault. The Court felt the act was little more than a trap for those who 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 great difficulty. 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 her best 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 second trimester 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 make a competent and good faith medical judgment on the feasibility of protecting the 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 the woman may be taken into account by the physician. It was unclear whether the physician's duty to the patient or the fetus was more important. Physicians were 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 this vagueness.