U.S. Supreme Court
COLAUTTI v. FRANKLIN, 439 U.S. 379 (1979)
439 U.S. 379
COLAUTTI, SECRETARY OF WELFARE OF PENNSYLVANIA, ET AL. v.
FRANKLIN ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
Argued October 3, 1978
Decided January 9, 1979
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.
(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 [439 U.S. 379, 380] acute here because of the
uncertainty of the viability determination itself. Pp. 394-397.
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.
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.
Carol Los Mansmann, Special Assistant Attorney General of Pennsylvania,
argued the cause for appellants. With her on the brief was J. Jerome Mansmann,
Special Assistant Attorney General.
Roland Morris argued the cause and filed a brief for appellees.*
[Footnote *] Burt Neuborne and Sylvia Law
filed a brief for the American Public Health Assn. et al. as amici curiae urging
Briefs of amici curiae were filed by George E. Reed and Patrick F. Geary for
the United States Catholic Conference; and by Dennis J. Horan, John D. Gorby,
Victor G. Rosenblum, and Dolores V. Horan for Americans United for Life, Inc.
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,
[439 U.S. 379, 381] 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
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 (1973), 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 [439
U.S. 379, 382] 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 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 [439 U.S. 379, 383] 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,
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 [439 U.S. 379, 384] The
three-judge 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 [439 U.S. 379,
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 patient-, spousal-, and
parental-consent issues and was instructive on the definition-of-viability
issue. Singleton concerned the issue of standing to challenge abortion
regulations. Accordingly, that portion of the three-judge court's judgment which
was the subject of the plaintiffs' appeal was summarily affirmed. Franklin v.
Fitzpatrick, 428 U.S. 901 (1976). And that portion of the judgment which was the
subject of the defendants' appeal was vacated and remanded for further
consideration in the light of Planned Parenthood, Singleton, and Virginia State
Board. Beal v. Franklin, 428 U.S. 901 (1976).
On remand, the parties entered into a stipulation which disposed of all
issues except the constitutionality of 5 (a) and 7. Relying on this Court's
supervening decisions in Beal v. Doe, 432 U.S. 438 (1977), and Maher v. Roe, 432
U.S. 464 (1977), the District Court found, contrary to its original view, [439 U.S. 379, 386] see 401 F. Supp., at 594, that 7 did
not violate either Tit. XIX of the Social Security Act, as added, 79 Stat. 343,
and amended, 42 U.S.C. 1396 et seq., or the Equal Protection Clause of the
Fourteenth Amendment. App. 241a. The court, however, declared: "After
reconsideration of section 5 (a) in light of the most recent Supreme Court
decisions, we adhere to our original view and decision that section 5 (a) is
unconstitutional." Id., at 240a-214a. Since the plaintiffs-appellees have not
appealed from the ruling with respect to 7, the only issue remaining in this
protracted litigation is the validity of 5 (a).
Three cases in the sensitive and earnestly contested abortion
area provide essential background for the present controversy.
In Roe v. Wade, 410 U.S. 113 (1973), this Court concluded that there is a
right of privacy, implicit in the liberty secured by the Fourteenth Amendment,
that "is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy." Id., at 153. This right, we said, although
fundamental, is not absolute or unqualified, and must be considered against
important state interests in the health of the pregnant woman and in the
potential life of the fetus. "These interests are separate and distinct. Each
grows in substantiality as the woman approaches term and, at a point during
pregnancy, each becomes `compelling.'" Id., at 162-163. For both logical and
biological reasons, we indicated that the State's interest in the potential life
of the fetus reaches the compelling point at the stage of viability. Hence,
prior to viability, the State may not seek to further this interest by directly
restricting a woman's decision whether or not to terminate her pregnancy.7
But after viability, the [439 U.S. 379, 387]
State, if it chooses, may regulate or even prohibit abortion except where
necessary, in appropriate medical judgment, to preserve the life or health of
the pregnant woman. Id., at 163-164.
We did not undertake in Roe to examine the various factors that may enter
into the determination of viability. We simply observed that, in the medical and
scientific communities, a fetus is considered viable if it is "potentially able
to live outside the mother's womb, albeit with artificial aid." Id., at 160. We
added that there must be a potentiality of "meaningful life," id., at 163, not
merely momentary survival. And we noted that viability "is usually placed at
about seven months (28 weeks) but may occur earlier, even at 24 weeks." Id., at
160. We thus left the point flexible for anticipated advancements in medical
Roe stressed repeatedly the central role of the physician, both in consulting
with the woman about whether or not to have an abortion, and in determining how
any abortion was to be carried out. We indicated that up to the points where
important state interests provide compelling justifications for intervention,
"the abortion decision in all its aspects in inherently, and primarily, a
medical decision," id., at 166, and we added that if this privilege were abused,
"the usual remedies, judicial and intra-professional, are available." Ibid.
Roe's companion case, Doe v. Bolton, 410 U.S. 179 (1973), underscored the
importance of affording the physician adequate discretion in the exercise of his
medical judgment. After the Court there reiterated that "a pregnant woman does
not have an absolute constitutional right to an abortion on her demand," id., at
189, the Court discussed, in a vagueness-attack context, the Georgia statute's
requirement that a physician's decision to perform an abortion must rest upon
"his best clinical judgment." The Court found it critical that that [439 U.S. 379, 388] judgment "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." Id., at 192.
The third case, Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), stressed similar themes. There a Missouri statute that defined
viability was challenged on the ground that it conflicted with the discussion of
viability in Roe and that it was, in reality, an attempt to advance the point of
viability to an earlier stage in gestation. The Court rejected that argument,
repeated the Roe definition of viability, 428 U.S., at 63, and observed again
that viability is "a matter of medical judgment, skill, and technical ability,
and we preserved [in Roe] the flexibility of the term." Id., at 64. The Court
also rejected a contention that "a specified number of weeks in pregnancy must
be fixed by statute as the point of viability." Id., at 65. It said:
"In any event, we agree with the District Court that it is not the proper
function of the legislature or the courts to place viability, which
essentially is a medical concept, at a specific point in the gestation
period. The time when viability is achieved may vary with each pregnancy,
and the determination of whether a particular fetus is viable is, and must
be, a matter for the judgment of the responsible attending physician." Id.,
In these three cases, then, 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. We reaffirm these principles. 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. Because this
point may differ with each pregnancy, neither the legislature nor the courts may
proclaim one of the elements entering [439 U.S.
379, 389] 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. Viability is
the critical point. And we have recognized no attempt to stretch the point of
viability one way or the other.
With these principles in mind, we turn to the issues presented by the instant
The attack mounted by the plaintiffs-appellees upon 5 (a)
centers on both the viability-determination requirement and the stated standard
of care. The former provision, requiring the physician to observe the care
standard when he determines that the fetus is viable, or when "there is
sufficient reason to believe that the fetus may be viable," is asserted to be
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. This provision is also said to be
unconstitutionally overbroad, because it carves out a new time period prior to
the stage of viability, and could have a restrictive effect on a couple who
wants to abort a fetus determined by genetic testing to be defective.8 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,"
is said to be void for vagueness and to be unconstitutionally restrictive in
failing to afford [439 U.S. 379, 390] the physician sufficient
professional discretion in determining which abortion technique is appropriate.
The defendants-appellants, in opposition, assert that the Pennsylvania
statute is concerned only with post-viability abortions and with prescribing a
standard of care for those abortions. They assert that the terminology "may be
viable" correctly describes the statistical probability of fetal survival
associated with viability; that the viability-determination requirement is
otherwise sufficiently definite to be interpreted by the medical community; and
that it is for the legislature, not the judiciary, to determine whether a viable
but genetically defective fetus has a right to life. They contend that the
standard-of-care provision preserves the flexibility required for sound medical
practice, and that it simply requires that when a physician has a choice of
procedures of equal risk to the woman, he must select the procedure least likely
to be fatal to the fetus.
We agree with plaintiffs-appellees that the
viability-determination requirement of 5 (a) is ambiguous, and that its
uncertainty is aggravated by the absence of a scienter requirement with respect
to the finding of viability. Because we conclude that this portion of the
statute is void for vagueness, we find it unnecessary to consider appellees'
alternative arguments based on the alleged overbreadth of 5 (a).
It is settled that, as a matter of due process, a criminal
statute that "fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute," United States v. Harriss,
347 U.S. 612, 617 (1954), or is so indefinite that "it encourages arbitrary and
erratic arrests and convictions," Papachristou v. Jacksonville, 405 U.S. 156,
162 (1972), is void for vagueness. See generally Grayned v. City of Rockford,
408 U.S. 104, 108-109 (1972). [439 U.S. 379, 391]
This appears to be especially true where the uncertainty induced by the statute
threatens to inhibit the exercise of constitutionally protected rights. Id., at
109; Smith v. Goguen, 415 U.S. 566, 573 (1974); Keyishian v. Board of Regents,
385 U.S. 589, 603-604 (1967).
Section 5 (a) requires every person who performs or induces 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 adhere to the prescribed standard of care. See n. 1,
supra. This requirement contains 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. Second, it is uncertain whether the
phrase "may be viable" simply refers to viability, as that term has been defined
in Roe and in Planned Parenthood, or whether it refers to an undefined penumbral
or "gray" area prior to the stage of viability.
The statute requires the physician to conform to the prescribed standard of
care if one of two conditions is satisfied: if he determines that the fetus "is
viable," or "if there is sufficient reason to believe that the fetus may be
viable." Apparently, the determination of whether the fetus "is viable" is to be
based on the attending physician's "experience, judgment or professional
competence," a subjective point of reference. But it is unclear whether the same
phrase applies to the second triggering condition, that is, to "sufficient
reason to believe that the fetus may be viable." In other words, 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.
The latter, obviously, portends not an inconsequential hazard for the typical
private practitioner who may not [439 U.S. 379, 392] have the skills and
technology that are readily available at a teaching hospital or large medical
The intended distinction between the phrases "is viable" and "may be viable"
is even more elusive. Appellants argue that no difference is intended, and that
the use of the "may be viable" words "simply incorporates the acknowledged
medical fact that a fetus is `viable' if it has that statistical `chance' of
survival recognized by the medical community." Brief for Appellants 28. The
statute, however, does not support the contention that "may be viable" is
synonymous with, or merely intended to explicate the meaning of, "viable."9
Section 5 (a) requires the physician to observe the prescribed standard of
care if he determines "that the fetus is viable or if there is sufficient reason
to believe that the fetus may be viable" (emphasis supplied). The syntax clearly
implies that there are two distinct conditions under which the physician must
conform to the standard of care. Appellants' argument that "may be viable" is
synonymous with "viable" would make either the first or the 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. See United States v. Menasche, 348 U.S. 528, 538-539 (1955).
Furthermore, the suggestion that "may be viable" is an explication of the
meaning of "viable" flies in the face of the fact that the statute, in 2,
already defines "viable." This, presumably, was intended to be the exclusive
definition of "viable" throughout the Act.10 In this respect, it is significant [439 U.S. 379, 393] that 6 (b) of the Act speaks
only of the limited availability of abortion during the stage of a pregnancy
"subsequent to viability." The concept of viability is just as important in 6
(b) as it is in 5 (a). Yet in 6 (b) the legislature found it unnecessary to
explain that a "viable" fetus includes one that "may be viable."
Since we must reject appellants' theory that "may be viable" means "viable,"
a second serious ambiguity appears in the statute. On the one hand, as appellees
urge and as the District Court found, see 401 F. Supp., at 572, it may be that
"may be viable" carves 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. On the other hand, although appellants do not argue this, it may be
that "may be viable" refers to viability as physicians understand it, and
"viable" refers to some undetermined stage later in pregnancy. We need not
resolve this question. The crucial point is that "viable" and "may be viable"
apparently refer to distinct conditions, and that one of these conditions
differs in some indeterminate way from the definition of viability as set forth
in Roe and in Planned Parenthood.11
Because of the double ambiguity in the viability-determination requirement,
this portion of the Pennsylvania statute is readily distinguishable from the
requirement that an abortion must be "necessary for the preservation of the
mother's life or health," upheld against a vagueness challenge in United [439 U.S. 379, 394] States v. Vuitch, 402 U.S. 62, 69-72
(1971), and the requirement that a physician determine, on the basis of his
"best clinical judgment," that an abortion is "necessary," upheld against a
vagueness attack in Doe v. Bolton, 410 U.S., at 191-192. The contested
provisions in those cases had been interpreted to allow the physician to make
his determination in the light of all attendant circumstances - psychological
and emotional as well as physical - that might be relevant to the well-being of
the patient. The present statute does not afford broad discretion to the
physician. Instead, it conditions potential criminal liability on confusing and
ambiguous criteria. It therefore presents serious problems of notice,
discriminatory application, and chilling effect on the exercise of
The vagueness of the viability-determination requirement of 5
(a) is compounded by the fact that the Act subjects the physician to potential
criminal liability without regard to fault. Under 5 (d), see n. 1, supra, 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." To be sure, the Pennsylvania law of
criminal homicide, made applicable to the physician by 5 (d), conditions guilt
upon a finding of scienter. See Pa. Stat. Ann., Tit. 18, 2501-2504 (Purdon 1973
and Supp. 1978). The required mental state, however, is that of "intentionally,
knowingly, recklessly or negligently caus[ing] the death of another human
being." 2501 (1973). Thus, the Pennsylvania law of criminal homicide requires
scienter with respect to whether the physician's actions will result in the
death of the fetus. But neither the Pennsylvania law of criminal homicide, nor
the Abortion Control Act, requires that the [439
U.S. 379, 395] physician be culpable in failing to find sufficient reason
to believe that the fetus may be viable.12
This Court has long recognized that the constitutionality of a vague
statutory standard is closely related to whether that standard incorporates a
requirement of mens rea. See, for example, United States v. United States Gypsum
Co., 438 U.S. 422, 434-446 (1978); Papachristou v. Jacksonville, 405 U.S., at
163; Boyce Motor Lines v. United States, 342 U.S. 337, 342 (1952).13
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 statute is
little more than "a trap for those who act in good faith." United States v.
Ragen, 314 U.S. 513, 524 (1942).
The perils of strict criminal liability are particularly acute here because
of the uncertainty of the viability determination itself. As the record in this
case indicates, a physician determines whether or not a fetus is viable after
considering a number of variables: the gestational age of the fetus, derived
from the reported menstrual history of the woman; fetal weight, based on an
inexact estimate of the size and condition of the uterus; the woman's general
health and nutrition; the [439 U.S. 379, 396]
quality of the available medical facilities; and other factors.14 Because of the number and the imprecision
of these variables, the probability of any particular fetus' obtaining
meaningful life outside the womb can be determined only with difficulty.
Moreover, the record indicates that even if agreement may be reached on the
probability of survival, different physicians equate viability with different
probabilities of survival, and some physicians refuse to equate viability with
any numerical probability at all.15 In the face of these uncertainties, it is not unlikely that
experts will disagree over whether a particular fetus in the second trimester
has advanced to the stage of viability. 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.
Because we hold that the viability-determination provision of 5 (a) is void
on its face, we need not now 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. We reaffirm, however, that "the determination of whether a particular
fetus is viable is, and must be, a matter for the judgment of the responsible
attending physician." Planned Parenthood of Central Missouri v.
[439 U.S. 379, 397]
Danforth, 428 U.S., at 64. State regulation that impinges upon this
determination, if it is to be constitutional, must allow the attending physician
"the room he needs to make his best medical judgment." Doe v. Bolton, 410 U.S.,
We also conclude that the standard-of-care provision of 5 (a)
is impermissibly vague.16 The
standard-of-care provision, when it applies, requires the physician to
"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."
Plaintiffs-appellees focus their attack on the second part of the standard,
requiring the physician 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.17
[439 U.S. 379, 398]
The District Court took extensive testimony from various physicians about
their understanding of this requirement. That testimony is illuminating. When
asked what method of abortion they would prefer to use in the second trimester
in the absence of 5 (a), the plaintiffs' experts said that they thought saline
amnio-infusion was the method of choice.18 This was described as a method involving
removal of amniotic fluid and injection of a saline or other solution into the
amniotic sac. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S.,
at 75-79. All physicians agreed, however, that saline amnio-infusion nearly
always is fatal to the fetus,19 and it was
commonly assumed that this method would be prohibited by the statute.
When the plaintiffs' and defendants' physician-experts respectively were
asked what would be the method of choice under 5 (a), opinions differed widely.
Preferences ranged from no abortion, to prostaglandin infusion, to hysterotomy,
to oxytocin induction.20 Each method, it was generally conceded,
involved disadvantages from the perspective of the woman. Hysterotomy, a type of
Caesarean section procedure, generally was considered to have the highest
incidence of fetal survival of any of the abortifacients. Hysterotomy, however,
is associated with the risks attendant upon any operative procedure involving
anesthesia and incision of [439 U.S. 379, 399]
tissue.21 And all physicians agreed that future children born to a
woman having a hysterotomy would have to be delivered by Caesarean section
because of the likelihood of rupture of the scar.22
Few of the testifying physicians had had any direct experience with
prostaglandins, described as drugs that stimulate uterine contractibility,
inducing premature expulsion of the fetus. See Planned Parenthood of Central
Missouri v. Danforth, 428 U.S., at 77-78. It was generally agreed that the
incidence of fetal survival with prostaglandins would be significantly greater
than with saline amnio-infusion.23 Several physicians testified, however, that
prostaglandins have undesirable side effects, such as nausea, vomiting,
headache, and diarrhea, and indicated that they are unsafe with patients having
a history of asthma, glaucoma, hypertension, cardiovascular disease, or
epilepsy.24 See Wynn v. Scott, 449 F. Supp. 1302, 1326
(ND Ill. 1978). One physician recommended oxytocin induction. He doubted,
however, whether the procedure would be fully effective in all cases, and he
indicated that the procedure was prolonged and expensive.25
The parties acknowledge that there is disagreement among medical authorities
about the relative merits and the safety of different abortion procedures that
may be used during the second trimester. See Brief for Appellants 24. The
appellants submit, however, that the only legally relevant considerations are
that alternatives exist among abortifacients,
[439 U.S. 379, 400] "and that the
physician, mindful of the state's interest in protecting viable life, must make
a competent and good faith medical judgment on the feasibility of protecting the
fetus' chance of survival in a manner consistent with the life and health of the
pregnant woman." Id., at 25. We read 5 (a), however, to be much more
The statute does not clearly specify, as appellants imply, that the woman's
life and health must always prevail over the fetus' life and health when they
conflict. The woman's life and health are not mentioned in the first part of the
stated standard of care, which sets forth the general duty to the viable fetus;
they are mentioned only in the second part which deals with the choice of
abortion procedures. Moreover, the second part of the standard directs the
physician to employ the abortion technique best suited to fetal survival "so
long as a different technique would not be necessary in order to preserve the
life or health of the mother" (emphasis supplied). In this 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. And
"the life or health of the mother," as used in 5 (a), has not been construed by
the courts of the Commonwealth 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. Cf. United States v. Vuitch, 402 U.S., at
71-72; Doe v. Bolton, 410 U.S., at 191.
Consequently, 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. Serious ethical and
constitutional difficulties, that we do not address, lurk behind this ambiguity.
We hold only that where conflicting duties of this magnitude are involved, the
[439 U.S. 379, 401]
State, at the least, must proceed with greater precision before it may subject a
physician to possible criminal sanctions.
Appellants' further suggestion that 5 (a) requires only that the physician
make a good-faith selection of the proper abortion procedure finds no support in
either the language or an authoritative interpretation of the statute.26 Certainly, there is nothing to suggest a mens rea requirement
with respect to a decision whether a particular abortion method is necessary in
order to preserve the life or health of the woman. The choice of an appropriate
abortion technique, as the record in this case so amply demonstrates, is a
complex medical judgment about which experts can - and do - disagree. The lack
of any scienter requirement exacerbates the uncertainty of the statute. We
conclude that the standard-of-care provision, like the viability-determination
requirement, is void for vagueness.
The judgment of the District Court is affirmed.
It is so ordered.
[Footnote 1] Section 5 reads in pertinent
"(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 [439 U.S. 379, 381] 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.
. . . . .
"(d) Any person who fails to make the determination provided for in
subsection (a) of this section, or who fails to exercise the degree of
professional skill, care and diligence or to provide the abortion technique
as provided for in subsection (a) of this section . . . shall be 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."
[Footnote 2] The three-judge court was
designated in September 1974 pursuant to 28 U.S.C. 2281 (1970 ed.). This statute
was repealed by Pub. L. 94-381, 1, 90 Stat. 1119, but the repeal did not apply
to any action commenced on or before August 12, 1976. 7.
[Footnote 3] The plaintiffs named in the
complaint, as amended, were Planned Parenthood Association of Southeastern
Pennsylvania, Inc., a nonprofit corporation; appellee John Franklin, M. D., a
licensed and board-certified obstetrician and gynecologist and medical director
of Planned Parenthood; Concern for Health Options: Information, Care and
Education, Inc. (CHOICE), a nonprofit corporation; and Clergy Consultation
Service of Northeastern Pennsylvania, a voluntary organization. Later, appellee
Obstetrical Society of Philadelphia intervened as a party plaintiff. Named as
original defendants were F. Emmett Fitzpatrick, Jr., District Attorney of
Philadelphia County, and Helene Wohlgemuth, the then Secretary of Welfare of the
Commonwealth of Pennsylvania. Subsequently, the Commonwealth's Attorney General
and the Commonwealth itself intervened as parties defendant.
The District Court, in a ruling not under challenge here, eventually
dismissed Planned Parenthood, CHOICE, and Clergy Consultation as plaintiffs.
Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554, 562, 593-594 (1975).
The present posture of the case, as a consequence, is a suit between Dr.
Franklin and the Obstetrical Society, as plaintiffs-appellees, and Aldo
[439 U.S. 379, 384] Colautti, the present Secretary of Welfare, the
Attorney General, the Commonwealth, and the District Attorney, as
We agree with the District Court's ruling in the cited 1975 opinion, 401 F.
Supp., at 561-562, 594, that under Doe v. Bolton, 410 U.S. 179, 188 (1973), the
plaintiff physicians have standing to challenge 5 (a), and that their claims
present a justiciable controversy. See Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52, 62 (1976).
[Footnote 4] The court preliminarily
enjoined the enforcement of the spousal- and parental-consent requirements, 3
(b); the penal provisions of 3 (e); the requirements of 5 (a) and (d); the
restriction on abortions subsequent to viability, 6 (b); the facility-approval
requirement, 6 (c); the reporting provisions, 6 (d); most of the penal
provisions of 6 (i); the restrictions on funding of abortions, 7; and the
definitions of "viable" and "informed consent" in 2. Record, Doc. No. 16; see
Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp., at 559.
[Footnote 5] The court ruled that "the
present action is determined to be a class action on behalf of the class of
Pennsylvania physicians who perform abortions and/or counsel their female
patients with regard to family planning and pregnancy including the option of
abortion, and the sub-class of members of the Obstetrical Society of
Philadelphia who practice in Pennsylvania." Record, Doc. No. 57.
[Footnote 6] See also Doe v. Zimmerman,
405 F. Supp. 534 (MD Pa. 1975).
[Footnote 7] In Maher v. Roe, 432 U.S.
464, 471-477 (1977), the Court ruled that a State may withhold funding to
indigent women even though such withholding influences the abortion decision
prior to viability. The Court, however, reaffirmed that a State during this
period may not impose direct [439 U.S. 379, 387]
obstacles - such as criminal penalties - to further its interest in the
potential life of the fetus.
[Footnote 8] The plaintiffs-appellees
introduced evidence that modern medical technology makes it possible to detect
whether a fetus is afflicted with such disorders as Tay-Sachs disease and Down's
syndrome (mongolism). Such testing, however, often cannot be completed until
after 18-20 weeks' gestation. App. 53a-56a (testimony of Hope Punnett, Ph. D.).
[Footnote 9] Appellants do not argue that
federal-court abstention is required on this issue, nor is it appropriate, given
the extent of the vagueness that afflicts 5 (a), for this Court to abstain sua
sponte. See Bellotti v. Baird, 428 U.S. 132, 143 n. 10 (1976).
[Footnote 10] The statute says that
viable "means," not "includes," the capability of a fetus "to live outside the
mother's womb albeit with artificial aid." As a rule, "[a] definition which
declares what a term `means' . . . excludes [439 U.S. 379, 393] any meaning that is not stated." 2A
C. Sands, Statutes and Statutory Construction 47.07 (4th ed. Supp. 1978).
[Footnote 11] Since our ruling today is
confined to the conclusion that the viability-determination requirement of 5 (a)
is impermissibly vague, there is no merit in the dissenting opinion's
suggestion, post, at 406, that the Court has "tacitly disown[ed]" the definition
of viability as set forth in Roe and Planned Parenthood. On the contrary, as
noted above, supra, at 388, we reaffirm what was said in those decisions about
this critical concept.
[Footnote 12] Section 5 (a) does provide
that the determination of viability is to be based on the physician's
"experience, judgment or professional competence." A subjective standard keyed
to the physician's individual skill and abilities, however, is different from a
requirement that the physician be culpable or blameworthy for his performance
under such a standard. Moreover, as noted above, it is ambiguous whether this
subjective language applies to the second condition that activates the duty to
the fetus, namely, "sufficient reason to believe that the fetus may be viable."
[Footnote 13] "[T]he requirement of a
specific intent to do a prohibited act may avoid those consequences to the
accused which may otherwise render a vague or indefinite statute invalid. . . .
The requirement that the act must be willful or purposeful may not render
certain, for all purposes, a statutory definition of the crime which is in some
respects uncertain. But it does relieve the statute of the objection that it
punishes without warning an offense of which the accused was unaware." Screws v.
United States, 325 U.S. 91, 101-102 (1945) (plurality opinion).
[Footnote 14] See App. 5a-6a, 10a, 17a
(testimony of Louis Gerstley III, M. D.); id., at 77a-78a, 81a (testimony of
Thomas W. Hilgers, M. D.); id., at 93a-101a, 109a, 112a (testimony of William J.
Keenan, M. D.).
[Footnote 15] See id., at 8a (testimony
of Dr. Gerstley) (viability means 5% chance of survival, "certainly at least two
to three percent"); id., at 104a (testimony of Dr. Keenan) (10% chance of
survival would be viable); id., at 144a (deposition of John Franklin, M. D.)
(viability means "ten percent or better" probability of survival); id., at 132a
(testimony of Arturo Hervada, M. D.) (it is misleading to be obsessed with a
particular percentage figure).
[Footnote 16] The dissenting opinion
questions whether the alleged vagueness of the standard-of-care provision is
properly before us, since it is said that this issue was not reached by the
District Court. That court, however, declared 5 (a) unconstitutional in its
entirety, including both the viability-determination requirement and the
standard-of-care provision. App. 243a. Appellees, as the prevailing parties, may
of course assert any ground in support of that judgment, "whether or not that
ground was relied upon or even considered by the trial court." Dandridge v.
Williams, 397 U.S. 471, 475 n. 6 (1970).
[Footnote 17] In Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. 52, 81-84 (1976), the Court struck down a
provision similar to the first part of the standard-of-care provision of 5 (a),
on the ground that it applied at all stages of gestation and not just to the
period subsequent to [439 U.S. 379, 398]
viability. Except to the extent that 5 (a) is also alleged to apply prior to the
point of viability, a contention we do not reach, see supra, at 390, appellees
do not challenge the standard-of-care provision on overbreadth grounds.
[Footnote 18] App. 11a (testimony of Dr.
Gerstley); id., at 28a (testimony of Dr. Franklin).
[Footnote 19] See, e. g., id., at 28a
(testimony of Dr. Franklin); id., at 36a (testimony of Fred Mecklenburg, M. D.).
[Footnote 20] There was testimony that
dilation and curettage and dilation and suction, two of the more common methods
of abortion in the first trimester, normally are not used in the second
trimester. Id., at 39a-40a (testimony of Dr. Mecklenburg).
[Footnote 21] Id., at 23a (testimony of
Dr. Franklin); id., at 43a (testimony of Dr. Mecklenburg); id., at 73a
(testimony of Dr. Hilgers).
[Footnote 22] See, e. g., id., at 13a
(testimony of Dr. Gerstley); id., at 28a (testimony of Dr. Franklin).
[Footnote 23] See, e. g., id., at
11a-12a (testimony of Dr. Gerstley); id., at 28a (testimony of Dr. Franklin).
[Footnote 24] See id., at 11a (testimony
of Dr. Gerstley); id., at 37a-38a (testimony of Dr. Mecklenburg); id., at 72a
(testimony of Dr. Hilgers).
[Footnote 25] Id., at 12a (testimony of
[Footnote 26] Appellants, again, do not
argue or suggest that we should abstain from passing on this issue. See n. 9,
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST
Because the Court now withdraws from the States a substantial measure of the
power to protect fetal life that was reserved to them in Roe v. Wade, 410 U.S.
113 (1973), and reaffirmed in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976), I file this dissent.
In Roe v. Wade, the Court defined the term "viability" to
signify the stage at which a fetus is "potentially able to live outside the
mother's womb, albeit with artificial aid." This is the point at which the
State's interest in protecting fetal [439 U.S.
379, 402] life becomes sufficiently strong to permit it to "go so far as
to proscribe abortion during that period, except when it is necessary to
preserve the life or health of the mother." 410 U.S., at 163-164.
The Court obviously crafted its definition of viability with some care, and
it chose to define that term not as that stage of development at which the fetus
actually is able or actually has the ability to survive outside the mother's
womb, with or without artificial aid, but as that point at which the fetus is
potentially able to survive. 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 in actuality."
Webster's New International Dictionary (2d ed. 1958). The Court's definition of
viability in Roe v. Wade 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.
It was against this background that the Pennsylvania statute at issue here
was adopted and the District Court's judgment was entered. Insofar as Roe v.
Wade was concerned, Pennsylvania could have defined viability in the language of
that case - "potentially able to live outside the mother's womb" - and could
have forbidden all abortions after this stage of any pregnancy. The Pennsylvania
Act, however, did not go so far. It forbade entirely only those abortions where
the fetus had attained viability as defined in 2 of the Act, that is, where the
fetus had "the capability . . . to live outside the mother's womb albeit with
artificial aid." Pa. Stat. Ann., Tit. 35, 6602 (Purdon 1977) (emphasis added).
But the State, understanding that it also had the power under Roe v. Wade to
regulate where the fetus was only "potentially able" to exist outside the womb,
also sought to regulate, but not forbid, abortions where there was sufficient
reason to believe that the fetus "may be viable"; this language was reasonably [439 U.S. 379, 403] believed by the State to be
equivalent to what the Court meant in 1973 by the term "potentially able to live
outside the mother's womb." Under 5 (a), abortionists must not only determine
whether the fetus is viable but also whether there is sufficient reason to
believe that the fetus may be viable. If either condition exists, the method of
abortion is regulated and a standard of care imposed. Under 5 (d), breach of
these regulations exposes the abortionist to the civil and criminal penalties
that would be applicable if a live birth rather than an abortion had been
In the original opinion and judgment of the three-judge court, Planned
Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975), 5 (a) was
invalidated on two grounds: first, because it required a determination of
viability and because that term, as defined in 2, was held to be unenforceably
vague; and second, because the section required a determination of when a fetus
may be viable, it was thought to regulate a period of time prior to viability
and was therefore considered to be invalid under this Court's cases. The
District Court was not disturbed by the fact that its opinion declared the term
"viability" as used in this Court's opinion in Roe v. Wade to be hopelessly
vague since it understood that opinion also to have given specific content to
that term and to have held that a State could not consider any fetus to be
viable prior to the 24th week of pregnancy. This was concrete guidance to the
States, and because the "may be viable" provision of 5 (a) "tend[ed] to carve
out a . . . period of time of potential viability [which might cover a period
of] 20 to 26 weeks gestation," 401 F. Supp., at 572, the State was unlawfully
regulating the second trimester. Because it sought to enforce 5 (a), 5 (d) was
also invalidated. Section 6 (b), which forbade all abortions after viability,
also fell to the challenge of vagueness.
The District Court's judgment was pending on appeal here when Planned
Parenthood of Central Missouri v. Danforth, [439
U.S. 379, 404]
supra, was argued and decided. There, the state Act defined viability as "that
stage of fetal development when the life of the unborn child may be continued
indefinitely outside the womb by natural or artificial life-supportive systems."
428 U.S., at 63. This definition was attacked as impermissibly expanding the Roe
v. Wade definition of viability; the "mere possibility of momentary survival,"
it was argued, was not the proper standard under the Court's cases. 428 U.S., at
63. It was also argued in this Court that the "may be" language of the Missouri
statute was vulnerable for the same reasons that the "may be" provision of the
Pennsylvania statute had been invalidated by the District Court in the case now
before us. Brief for Appellants, O. T. 1975, No. 74-1151, pp. 65-66, quoting
Planned Parenthood Assn. v. Fitzpatrick, supra, at 571-572. This Court, however,
rejected these arguments and sustained the Missouri definition as consistent
with Roe, "even when read in conjunction with" another section of the Act that
proscribed all abortions not necessary to preserve the life or health of the
mother "unless the attending physician first certifies with reasonable medical
certainty that the fetus is not viable," that is, that it has not reached that
stage at which it may exist indefinitely outside the mother's womb. 428 U.S., at
63-64. The Court noted that one of the appellant doctors "had no particular
difficulty with the statutory definition" and added that the Missouri definition
might well be considered more favorable to the complainants than the Roe
definition since the "point when life can be `continued indefinitely outside the
womb' may well occur later in pregnancy than the point where the fetus is
`potentially able to live outside the mother's womb.'" 428 U.S., at 64. The
Court went on to make clear that it was not the proper function of the
legislature or of the courts to place viability at a specific point in the
gestation period. The "flexibility of the term," which was essentially a medical
concept, was to be preserved. Ibid. The Court plainly reaffirmed what it had
held [439 U.S. 379, 405] in Roe v. Wade: Viability 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. The Court also reaffirmed that at any time after viability, as
so understood, the State has the power to prohibit abortions except when
necessary to preserve the life or health of the mother.
In light of Danforth, several aspects of the District Court's judgment in the
Fitzpatrick case were highly questionable, and that judgment was accordingly
vacated and remanded to the District Court for reconsideration. Beal v.
Franklin, 428 U.S. 901 (1976). A drastically modified judgment eventuated. The
term "viability" could not be deemed vague in itself, and hence the definition
of that term in 2 and the proscription of 6 (b) against post-viability abortions
were sustained. The District Court, however, in a conclusory opinion adhered to
its prior view that 5 (a) was unconstitutional, as was 5 (d) insofar as it
related to 5 (a).
Affirmance of the District Court's judgment is untenable. The District Court
originally thought 5 (a) was vague because the term "viability" was itself
vague. The Court scotched that notion in Danforth, and the District Court then
sustained the Pennsylvania definition of viability. In doing so, it necessarily
nullified the major reason for its prior invalidation of 5 (a), which was that
it incorporated the supposedly vague standard of 2. But the District Court had
also said that the "may be viable" standard was invalid as an impermissible
effort to regulate a period of "potential" viability. This was the sole
remaining articulated ground for invalidating 5 (a). But this is the very ground
that was urged and rejected in Danforth, where this Court sustained the Missouri
provision defining viability as the stage at which the fetus "may" have the
ability to survive outside the womb and reaffirmed the flexible concept of
viability announced in Roe. [439 U.S. 379, 406]
In affirming the District Court, the Court does not in so many words agree
with the District Court but argues that it is too difficult to know whether the
Pennsylvania Act simply intended, as the State urges, to go no further than Roe
permitted in protecting a fetus that is potentially able to survive or whether
it intended to carve out a protected period prior to viability as defined in
Roe. The District Court, although otherwise seriously in error, had no such
trouble with the Act. It understood the "may be viable" provision as an attempt
to protect a period of potential life, precisely the kind of interest that Roe
protected but which the District Court erroneously thought the State was not
entitled to protect.1 Danforth, as I have said, reaffirmed Roe in this respect. 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. It seems to me that, in affirming,
the Court is tacitly disowning the "may be" standard of the Missouri law as well
as the "potential ability" [439 U.S. 379, 407]
component of viability as that concept was described in Roe. This is a further
constitutionally unwarranted intrusion upon the police powers of the States.
Apparently uneasy with its work, the Court has searched for
and seized upon two additional reasons to support affirmance, neither of which
was relied upon by the District Court. The Court first notes that under 5 (d),
failure to make the determinations required by 5 (a), or otherwise to comply
with its provisions, subjects the abortionist to criminal prosecution under
those laws that "would pertain to him had the fetus been a child who was
intended to be born and not aborted." Although concededly the Pennsylvania law
of criminal homicide conditions guilt upon a finding that the defendant
intentionally, knowingly, recklessly, or negligently caused the death of another
human being, the Court nevertheless goes on to declare that the abortionist
could be successfully prosecuted for criminal homicide without any such fault or
omission in determining whether or not the fetus is viable or may be viable.
This alleged lack of a scienter requirement, the Court says, fortifies its
holding that 5 (a) is void for vagueness.
This seems to me an incredible construction of the Pennsylvania statutes. The
District Court suggested nothing of the sort, and appellees focus entirely on 5
(a), ignoring the homicide statutes. The latter not only define the specified
degrees of scienter that are required for the various homicides, but also
provide that ignorance or mistake as to a matter of fact, for which there is a
reasonable explanation, is a defense to a homicide charge if it negatives the
mental state necessary for conviction. Pa. Stat. Ann., Tit. 18, 304 (Purdon
1973). Given this background, 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 [439 U.S. 379,
408] for criminal homicide. This is the State's submission in this Court;
the court below did not address the matter; and at the very least this is
something the Court should not decide without hearing from the Pennsylvania
Secondly, the Court proceeds to find the standard-of-care provision in 5 (a)
to be impermissibly vague, particularly because of an asserted lack of a mens
rea requirement. I am unable to agree. In the first place, the District Court
found fault with 5 (a) only because of its viability and "may be viable"
provisions. It neither considered nor invalidated the standard-of-care
provision. Furthermore, the complaint did not expressly attack 5 (a) on this
ground, and plaintiffs' request for findings and conclusions challenged the
section only on the grounds of the overbreadth and vagueness of the viability
and the "may be viable" provisions. There was no request to invalidate the
standard-of-care provision. Also, the plaintiffs' post-trial brief dealt with
the matter in only the most tangential way. Appellees took no cross-appeal; and
although they argue the matter in their brief on the merits in this Court, I
question whether they are entitled to have still another provision of the
Pennsylvania Act declared unconstitutional in this Court in the first instance,
thereby and to that extent expanding the relief they obtained in the court
below.2 United States v. New York Telephone Co., 434 U.S. 159, 166 n.
In any event, I cannot join the Court in its determined attack on the
Pennsylvania statute. As in the case with a mistaken viability determination
under 5 (a), there is no basis for asserting the lack of a scienter requirement
in a prosecution for violating the standard-of-care provision. I agree with the
State that there is not the remotest chance that any abortionist will be
prosecuted on the basis of a goodfaith [439 U.S. 379, 409] mistake regarding whether to abort,
and if he does, with respect to which abortion technique is to be used. If there
is substantial doubt about this, the Court should not complain of a lack of an
authoritative state construction, as it does, but should direct abstention and
permit the state courts to address the issues in the light of the Pennsylvania
homicide laws with which those courts are so much more familiar than are we or
any other federal court.
Although it seems to me that the Court has considerably
narrowed the scope of the power to forbid and regulate abortions that the States
could reasonably have expected to enjoy under Roe and Danforth, the Court has
not yet invalidated a statute simply requiring abortionists to determine whether
a fetus is viable and forbidding the abortion of a viable fetus except where
necessary to save the life or health of the mother. Nor has it yet ruled that
the abortionist's determination of viability under such a standard must be final
and is immune to civil or criminal attack. Sections 2 and 6 (b) of the
Pennsylvania law, for example, remain undisturbed by the District Court's
judgment or by the judgment of this Court.
What the Court has done is to issue 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. This edict has no
constitutional warrant, and I cannot join it.
[Footnote 1] The District Court
"Roe makes it abundantly clear that the compelling point at which a state
in the interest of fetal life may regulate, or even prohibit, abortion is
not before the 24th week of gestation of the fetus, at which point the
Supreme Court recognized the fetus then presumably has the capability of
meaningful life outside the mother's womb. Consequently, Roe recognizes only
two periods concerning fetuses. The period prior to viability, when the
state may not regulate in the interest of fetal life, and the period after
viability, when it may prohibit altogether or regulate as it sees fit. The
`may be viable' provision of Section 5 (a) tends to carve out a third period
of time of potential viability." Planned Parenthood Assn. v. Fitzpatrick,
401 F. Supp. 554, 572 (ED Pa. 1975) (emphasis added).
Thus, the court interpreted the term "viability" more restrictively than Roe,
read in its entirety, permitted but coextensively with the definition in 2.
Based on its misapprehension of Roe, the court condemned 5 (a) essentially for
reaching the period when the fetus has the potential "capability of meaningful
life outside the mother's womb." Ibid.
[Footnote 2] Unquestionably,
rehabilitating 5 (a) to satisfy this Court's opinion will be a far more
extensive and more difficult task than that which the State faced under the
District Court's ruling. [439 U.S. 379, 410]
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