439 U.S. 379 (1979), 77-891, Colautti v. Franklin

Docket Nº:No. 77-891
Citation:439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596
Party Name:Colautti v. Franklin
Case Date:January 09, 1979
Court:United States Supreme Court
 
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Page 379

439 U.S. 379 (1979)

99 S.Ct. 675, 58 L.Ed.2d 596

Colautti

v.

Franklin

No. 77-891

United States Supreme Court

Jan. 9, 1979

Argued October 3, 1978

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

Section 5(a) of the Pennsylvania Abortion Control Act requires every person who performs an abortion to make a determination, "based on his experience, judgment or professional competence," that the fetus is not viable. If such person determines that the fetus "is viable," or "if there is sufficient reason to believe that the fetus may be viable," then he must exercise the same care to preserve the fetus' life and health as would be required in the case of a fetus intended to be born alive, and must use the abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique is not necessary to preserve the mother's life or health. The Act, in § 5(d), also imposes a penal sanction for a violation of § 5(a). Appellees brought suit claiming, inter alia, that § 5(a) is unconstitutionally vague, and a three-judge District Court upheld their claim.

Held:

1. The viability determination requirement of § 5(a) is void for vagueness. Pp. 390-397.

(a) Though apparently the determination of whether the fetus "is viable" is to rest upon the basis of the attending physician's "experience, judgment or professional competence," it is ambiguous whether that subjective language applies to the second condition that activates the duty to the fetus, viz., "sufficient reason to believe that the fetus may be viable." Pp. 391-392.

(b) The intended distinction between "is viable" and "may be viable" is elusive. Apparently those phrases refer to distinct conditions, one of which indeterminately differs from the definition of viability set forth in Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52. Pp. 392-394.

(c) The vagueness of the viability determination requirement is compounded by the fact that § 5(d) subjects the physician to potential criminal liability without regard to fault. Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the Act is little more than "a trap for those who act in good faith," United States v. Ragen, 314 U.S. 513, 524, and the perils of strict criminal liability are particularly

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acute here because of the uncertainty of the viability determination itself. Pp. 390-397.

2. The standard of care provision is likewise impermissibly vague. 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 patient's health and increased chances of fetal survival. Where conflicting duties of such magnitude are involved, there must be greater statutory precision before a physician may be subjected to possible criminal sanctions. Pp. 397-401.

Affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 401.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

At issue here is the constitutionality of subsection (a) of § 51 of the Pennsylvania Abortion Control Act, 1974 Pa.Laws,

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Act No. 209, Pa.Stat.Ann., Tit. 35, § 6605(a) (Purdon 1977). This statute subjects a physician who performs an abortion to potential criminal liability if he fails to utilize a statutorily prescribed technique when the fetus "is viable" or when there is "sufficient reason to believe that the fetus may be viable." A three-judge Federal District Court2 declared § 5(a) unconstitutionally vague and overbroad, and enjoined its enforcement. App. 239a-244a. Pursuant to 28 U.S.C. § 1253, we noted probable jurisdiction sub nom. Beal v. Franklin, 435 U.S. 913 (1978).

I

The Abortion Control Act was passed by the Pennsylvania Legislature, over the Governor's veto, in the year following this Court's decisions in Roe v. Wade, 410 U.S. 113 (173), and Doe v. Bolton, 410 U.S. 179 (1973). It was a comprehensive statute.

Section 1 gave the Act its title. Section 2 defined, among other terms, "informed consent" and "viable." The latter was specified to mean "the capability of a fetus to live outside the

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mother's womb albeit with artificial aid." See Roe v. Wade, 410 U.S. at 160.

Section 3(a) proscribed the performance of an abortion "upon any person in the absence of informed consent thereto by such person." Section 3(b)(i) prohibited the performance of an abortion in the absence of the written consent of the woman's spouse, provided that the spouse could be located and notified, and the abortion was not certified by a licensed physician "to be necessary in order to preserve the life or health of the mother." Section 3(b)(ii), applicable [99 S.Ct. 679] if the woman was unmarried and under the age of 18, forbade the performance of an abortion in the absence of the written consent of "one parent or person in loco parentis" of the woman, unless the abortion was certified by a licensed physician "as necessary in order to preserve the life of the mother." Section 3(e) provided that whoever performed an abortion without such consent was guilty of a misdemeanor of the first degree.

Section 4 provided that whoever, intentionally and willfully, took the life of a premature infant aborted alive, was guilty of murder of the second degree. Section 5(a), set forth in n. 1, supra, 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 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, and was required to adopt the abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique was not necessary in order to preserve the life or health of the mother. Section 5(d), also set forth in n. 1, imposed a penal sanction for a violation of § 5(a).

Section 6 specified abortion controls. It prohibited abortion during the stage of pregnancy subsequent to viability, except where necessary, in the judgment of a licensed physician, to preserve the life or health of the mother. No abortion

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was to be performed except by a licensed physician and in an approved facility. It required that appropriate records be kept, and that quarterly reports be filed with the Commonwealth's Department of Health. And it prohibited solicitation or advertising with respect to abortions. A violation of § 6 was a misdemeanor of the first or third degrees, as specified.

Section 7 prohibited the use of public funds for an abortion in the absence of a certificate of a physician stating that the abortion was necessary in order to preserve the life or health of the mother. Finally, § 8 authorized the Department of Health to make rules and regulations with respect to performance of abortions and the facilities in which abortions were performed. See Pa.Stat.Ann., Tit. 35, §§ 6601-6608 (Purdon 1977).

Prior to the Act's effective date, October 10, 1974, the present suit was filed in the United States District Court for the Eastern District of Pennsylvania challenging, on federal constitutional grounds, nearly all of the Act's provisions.3

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The three-judge [99 S.Ct. 680] court, on October 10, issued a preliminary injunction restraining the enforcement of a number of those provisions.4 Each side sought a class action determination; the plaintiffs', but not the defendants', motion to this effect was granted.5 The case went to trial in January, 1975. The court received extensive testimony from expert witnesses on all aspects of abortion procedures. The resulting Judgment declared the Act to be severable, upheld certain of its provisions, and held other provisions unconstitutional. Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (1975).6 The court sustained the definition of "informed consent" in § 2; the facility approval requirement and certain of the reporting requirements of § 6; § 8's authorization of rules and regulations; and, by a divided vote, the informed consent requirement of § 3(a). It overturned § 3(b)(i)'s spousal consent requirement

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and, again by a divided vote, § 3(b)(ii)'s parental consent requirement; § 6's reporting requirements relating to spousal and parental consent; § 6's prohibition of advertising; and § 7's restriction on abortion funding. The definition of "viable" in § 2 was declared void for vagueness and, because of the incorporation of this definition, § 6's proscription of abortions after viability, except to preserve the life or health of the woman, was struck down. 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 invalidated the viability determination and standard of care provisions of § 5(a). 401 F.Supp. at 594.

Both sides appealed to this Court. While the appeals were pending, the Court decided Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); and Singleton v. Wulff, 428 U.S. 106 (1976). Virginia State Board shed light on the prohibition of advertising for abortion services. Planned Parenthood had direct bearing on the...

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