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Colautti v. Franklin (1979)

In Depth


In 1974, the Pennsylvania General Assembly enacted a comprehensive law regulating abortion entitled the Pennsylvania Abortion Control Act.  The Act defined terms used therein; mandated informed consent, spousal consent and parental consent; provided that anyone who intentionally and willfully took the life of a premature infant aborted alive was guilty of murder in the second degree; provided that if the fetus was determined to be viable, or if there was sufficient reason to believe that the fetus might be viable, the physician performing the abortion had 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, and had to use the abortion technique most likely to result in a live birth so long as some other method was not necessary to preserve the life and health of the mother; prohibited abortion after viability except where necessary, in the judgment of the attending physician, to preserve the life or health of the mother; prohibited the performance of abortions by nonphysicians; required abortions to be performed in approved facilities; mandated recordkeeping and reporting; prohibited solicitation or advertising of abortion services; prohibited the use of public funds for abortion in the absence of a certificate of a physician stating that the abortion was necessary to preserve the life or health of the mother; and authorized the Department of Health to adopt rules and regulations regarding the performance of abortions and the facilities in which they were performed.

Before the Act took effect, plaintiffs, including a physician who performs abortions, brought a lawsuit in federal district against the district attorney of Philadelphia County and the Pennsylvania Secretary of Welfare challenging nearly all of the Act's provisions.  After the lawsuit was filed, the Obstetrical Society of Philadelphia was allowed to intervene as a party plaintiff, and the Pennsylvania Attorney General and the Commonwealth of Pennsylvania were allowed to intervene as parties defendant.  Following a trial, a three-judge district court declared the Act to be severable, upheld certain of its provisions and struck down others.  The court sustained the definition of informed consent, the requirement of informed consent, the facility-approval requirement, certain reporting requirements and the authority of the Department of Health to adopt rules and regulations.  The court overturned the spousal consent requirement, the parental consent requirement, reporting requirements related to spousal and parental consent, the prohibition of advertising and the restriction on abortion funding.  The court also declared the definition of "viable" to be void for vagueness and, based on the use of that definition in another provision of the Act, declared unconstitutional the prohibition of abortions after viability.  Finally, in part because of the incorporation of the definition of "viable" and in part because of the perceived overbreadth of the phrase "may be viable," the court struck down both the viability-determination and the standard-of-care provisions of the Act.

Both the plaintiffs and defendants appealed to the Supreme Court.  Based on cases that had been decided by the Supreme Court while the appeals were pending, the Court summarily affirmed that portion of the three-judge court's judgment that plaintiffs had appealed, and vacated and remanded for further consideration that portion of the judgment that was the subject of defendants' appeal.  On remand, the parties entered in a stipulation which disposed of all issues except the constitutionality of the viability-determination and standard-of-care requirements, and the prohibition of public funding of abortion.  The court upheld the public funding restriction, which plaintiffs did not appeal, but struck down the viability-determination and standard-of-care requirements, which defendants did appeal to the Supreme Court.

The Statute Under Review

(a) Every person who performs or induces an abortion shall prior thereto have made a determination based on his experience, judgment or professional competence that the fetus is not viable, and if the determination is that the fetus is viable or if there is sufficient reason to believe that the fetus may be viable, shall exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother.

1974 Pa. Laws, Act No. 209, § 5(a), codified at Pa. Stat. Ann. tit. 35, § 6605(a) (Purdon 1977).

The Court's Holding

By a six-to-three vote, the Court struck down the viability-determination and standard-of-care requirements of § 5(a) as impermissibly vague.

The Court's Reasoning

Justice Blackmun's opinion for the Court began with a review of the holdings in Roe v. Wade, 410 U.S. 113 (1973), Doe v. Bolton, 410 U.S. 178 (1973), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).  Colautti, 439 U.S. at 386-88.  In these cases, "this Court has stressed viability, has declared its determination to be a matter for medical judgment, and has recognized that differing legal consequences ensue upon the near and far sides of that point in the human gestation period."  Id. at 388.  "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' sustained survival outside the womb, with or without artificial support."  Id. "Because that point may differ with each pregnancy," he emphasized, "neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus."  Id. at 388-389.  Finally, "we have recognized no attempt to stretch the point of viability one way or the other." Id. at 389.

Under § 5(a) of the Pennsylvania Abortion Control Act, the standard-of-care requirement applied whenever a physician determined that the fetus is viable, or when "there is sufficient reason to believe that the fetus may be viable."  The plaintiffs in Colautti argued that this language was unconstitutionally vague "because it fails to inform the physician when his duty to the fetus arises, and because it does not make the physician's good-faith determination of viability conclusive."  Colautti, 439 U.S. at 389 (summarizing plaintiffs' argument).   Plaintiffs also argued that the standard of care, and in particular the requirement that the physician employ the abortion technique "which would provide the best opportunity for the fetus to be aborted alive so long as a different technique would not be necessary in order to preserve the life or health of the mother," was "void for vagueness and . . . unconstitutionally restrictive" because it failed "to afford the physician sufficient professional discretion in determining which abortion technique is appropriate."  Id. at 389-90.

The Court, per Justice Blackmun, agreed that both the viability-determination and the standard-of-care requirements of § 5(a) were void for vagueness. Colautti, 439 U.S. at 396, 401.  Addressing the former issue first, the Court determined that "the viability-determination requirement of § 5(a) is ambiguous," and that its ambiguity was aggravated "by the absence of a scienter [knowledge] requirement with respect to the finding of viability."  Id. at 439 U.S. at 390.  Section 5(a) contained a "double ambiguity."  First, "it is unclear whether the statute imports a purely subjective standard, or whether it imposes a mixed subjective and objective standard."  Id. at 391.  Second, "it is uncertain whether the phrase 'may be viable' simply refers to viability, as that term has been defined in Roe and Planned Parenthood, or whether it refers to an undefined penumbral, or 'gray' area prior to the stage of viability."  Id.

With respect to the first ambiguity, the Court stated the determination as to whether a fetus "is viable" under § 5(a) was apparently  based "on the attending physician's 'experience, judgment or professional competence,' a subjective point of reference." Colautti, 439 U.S. at 391.  But the statute was unclear whether the same phrase applied to the second condition that triggered the standard-of-care requirement, i.e., that there is "sufficient reason to believe that the fetus may be viable."  Id.  "In other words," the Court said, "it is ambiguous whether there must be 'sufficient reason' from the perspective of the judgment, skill, and training of the attending physician, or 'sufficient reason' from the perspective of a cross section of the medical community or a panel of experts."  Id.  The latter interpretation, "portends not an inconsequential hazard for the typical private practitioner who may not have the skills and technology that are readily available at a teaching hospital or large medical center."  Id. at 391-92.

With respect to the second ambiguity, the Court rejected the Commonwealth's defense that "is viable" and "may be viable" were synonymous expressions, which "would make either the first or second condition redundant or largely superfluous, in violation of the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative."  Colautti, 439 U.S. at 392.  Moreover, the suggestion that "may be viable" was simply an explication of the term "viable" ignored the fact that § 2 of the Act already defined "viable."  Id.  Because the phrase "may be viable" was not synonymous with "viable," another ambiguity was created.  The phrase "may be viable" could be understood to "carve[] out a new time period during pregnancy when there is a remote possibility of fetal survival outside the womb, but the fetus has not yet attained the reasonable likelihood of survival that physicians associate with viability." Id. at 393.  "On the other hand," the Court continued, "it may be that 'may be viable' refers to viability as physicians understood it, and 'viable' refers to some undetermined stage later in pregnancy."  Id. The Court found no need to resolve this question.  The critical point was that "viable" and "may be viable" "apparently refer to distinct conditions, and . . . one of these conditions differs in some indeterminate way from the definition of viability as set forth in Roe and Planned Parenthood." Id.  The Court concluded this part of its opinion by stating that § 5(a) "conditions potential criminal liability on confusing and ambiguous criteria," which "presents serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights."  Id. at 394.

The Court determined that the vagueness of the viability-determination requirement of § 5(a) was compounded by the fact that the Act "subjects the physician to potential criminal liability without regard to fault."  Colautti, 439 U.S. at 394.  Under § 5(d) of the Act, "a physician who fails to abide by the standard of care when there is sufficient reason to believe that the fetus 'may be viable' is subject 'to such civil or criminal liability as would pertain to him had the fetus been a child who was intended to be born and not aborted.' " Id.  "[N]either the Pennsylvania law of criminal homicide, nor the Abortion Control Act, requires that the physician be culpable in failing to find sufficient reason to believe that the fetus may be viable."  Id. at 394-95.  "Because of the absence of a scienter [knowledge] requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than a trap for those who act in good faith." Id. at 395 (citation and internal quotation marks omitted).  In light of the many factors that physicians take into consideration in determining whether a fetus is viable, "it is not unlikely that experts will disagree over whether a particular fetus in the second trimester has advanced to the stage of viability."  Id. at 396.  "The prospect of such disagreement, in conjunction with a statute imposing strict civil and criminal liability for an erroneous determination of viability, could have a profound chilling effect on the willingness of physicians to perform abortions near the point of viability in the manner indicated by their best medical judgment."  Id.  Accordingly, the Court held the viability-determination requirement provision of § 5(a) "void on its face . . . ."  Id.  The Court expressly did not decide whether, under a properly drafted statute, "a finding of bad faith or some other type of scienter would be required before a physician could be held criminally responsible for an erroneous determination of viability."  Id.

In the last part of his opinion for the Court, Justice Blackmun addressed the constitutionality of the "standard-of-care" provision of § 5(a).  The plaintiffs argued that "the second part of the standard, requiring physicians to employ the abortion technique offering the greatest possibility of fetal survival, provided some other technique would not be necessary in order to preserve the life or health of the mother," was impermissibly vague.  Colautti, 439 U.S. at 397 (setting forth plaintiffs' argument).  In context, "the word 'necessary' suggests that a particular technique must be indispensable to the woman's life or health-not merely desirable-before it may be adopted."  Id. at 400.  Moreover, the phrase "the life or health of the mother," as used in § 5(a), has not been construed by state courts "to mean, nor does it necessarily imply, that all factors relevant to the welfare of the woman may be taken into account by the physician in making his decision."  Id.  As a consequence, "it is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a 'trade-off' between the woman's health and additional percentage points of fetal survival."  Id.  The Court held that "where conflicting duties of this magnitude are involved, the State, at the least, must proceed with greater precision before it may subject a physician to possible criminal sanctions," and concluded that "the standard-of-care provision, like the viability-determination requirement, is void for vagueness."  Id. at 400-01.

The Dissenting Opinion

Justice White, joined by Chief Justice Burger and Justice Rehnquist, dissented.  Justice White began his dissent by noting that the language in § 5(a) of the Abortion Control Act-"may be viable"-was consistent with the Court's definition of "viability" in Roe as referring to "the stage [of pregnancy] at which a fetus is 'potentially able to live outside the mother's womb, albeit with artificial aid.' " Colautti, 439 U.S. at 401 (White, J., dissenting) (quoting Roe, 410 U.S. at 163-64).  "In the ordinary usage of these words, being able and being potentially able do not mean the same thing.  Potential ability is not actual ability.  It is ability '[e]xisting in possibility, not actuality.' " Id. at 402 (quoting Webster's New Int'l Dictionary (2d ed. 1958)) (emphasis in original).  The definition of viability in Roe "reaches an earlier point in the development of the fetus than that stage at which a doctor could say with assurance that the fetus would survive outside the womb."  Id. (emphasis in original).  "Viability," therefore, "refers not only to that stage of development when the fetus actually has the capability of existing outside the womb but also to that stage when the fetus may have the ability to do so."  Id. at 405 (emphasis in original).

The Pennsylvania Abortion Control Act drew a distinction between "the capability . . . to live outside the mother's womb albeit with artificial aid," and the "potential ability" to live outside the mother's womb.  Colautti, 439 U.S. at 402 (White, J., dissenting). The Act prohibited abortions (except those necessary to preserve the mother's life or health) when the fetus was "capable" of living outside the mother's womb, §§ 2 (defining viability), 6 (prohibiting abortions), but merely regulated abortions when the fetus might be viable, § 5(a) (imposing a standard of care for abortions performed after the fetus was viable or "may be" viable. Id. at 402-03.  Because the Commonwealth could have prohibited abortions at any stage after the fetus was "potentially able to live outside the mother's womb," it could decide instead to regulate those abortions by imposing a standard of care for abortion performed at that stage of pregnancy. Id. at 402-07.  Moreover, in Justice White's opinion, there was no basis for the Court's conclusion that a physician could be prosecuted for criminal homicide for  making a good faith mistake about whether a fetus is or is not viable. Id. at 407-08.

Finally, Justice White also took issue with the Court's treatment of the standard-of-care requirement.  Based upon the mens rea (state-of-mind) provisions of state law, Justice White concluded that there was no basis "for asserting the lack of a scienter [knowledge] requirement in a prosecution for violating the standard-of-care provision."  Colautti, 439 U.S. at 408 (White, J., dissenting).  In sum, "there is not the remotest chance that any abortionist will be prosecuted on the basis of a good-faith mistake regarding whether to abort, and if he does, with respect to which abortion technique is to be used."  Id. at 408-09.

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