Colautti v. Franklin - 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Justice White, writing the dissent, felt that the Court had now withdrawn from the states a substantial measure of power to protect fetal life.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 draw any measurable difference insofar as vagueness is concerned between `viability' defined as the ability to survive and `viability' defined as that stage at which the fetus may have the ability to survive." White noted that the majority's decision was constitutionally an unwarranted intrusion upon the police powers 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 to the States, in the name of vagueness, that they should not attempt to forbid or 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 to be viable."