In the wake of the Supreme Court’s recognition in Roe v. Wade that the constitutional right to privacy included the right to choose an abortion, the states, no longer able to outlaw abortion, made several attempts to regulate it. In Colautti v. Franklin, the Supreme Court considered the constitutionality of a Pennsylvania law providing that physicians performing abortions must attempt to preserve the life and health of an aborted fetus that is viable or may be viable. Without deciding whether a more clearly drafted law requiring such a standard of care would be constitutional, the Court struck the law as unconstitutionally vague.
The Pennsylvania law stated that a physician performing an abortion involving a fetus that is viable or may be viable must exercise the same care to preserve the life and health of the fetus as if the physician intended the fetus to be born alive and to use the abortion method most likely to preserve the life and health of the fetus, so long as another method was not necessary to preserve the life and health of the mother.
The Supreme Court decided the law was void for vagueness. Specifically, the Court held that it was unclear what was meant by the phrase ‘‘may be viable’’ and how this was different from the phrase ‘‘is viable.’’ It was unclear whether the phrase ‘‘may be viable’’ referred to a point in time prior to actual viability. If the statute was an attempt by the state to define viability differently from how it had been defined in Roe v. Wade, the Court explained, it would be unconstitutional. Drawing on its decision in Doe v. Bolton, the Supreme Court emphasized that the physician must be given broad discretion to determine viability, defined as the point at which, in the physician’s reasonable medical judgment, the fetus had a reasonable likelihood of survival outside the womb.
An additional reason for the statute’s vagueness was that it held the physician criminally liable regardless of fault or intent. The Court noted that criminal statutes that do not require intent on the part of the wrongdoer are often constitutionally problematic, since they have a tendency to create a trap for the unwary individual who may be acting in good faith.
Finally, the law was vague, because it did not make clear whether the woman’s health and life must always take precedence over the fetus’s health and life, or whether the law required the physician in some circumstances to sacrifice the woman’s health for the fetus’s survival. Seven years later, in Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court decided that a state may not force a tradeoff between a woman’s health and that of her fetus; the woman’s health and life must always be paramount.
Colautti is primarily a case about abortion regulation and about unconstitutional vagueness. Colautti’s statement that the physician must be given wide discretion to determine important issues such as viability, however, may have been undermined by the Supreme Court’s subsequent, less deferential approach in Webster v. Reproductive Health Services and Planned Parenthood v. Casey.
B. JESSIE HILL
References and Further Reading
Daly, Erin, Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey, American University Law Review 45 (1995): 1:77–150.
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 600–704, New York: Macmillan, 1994.
Tribe, Laurence H. American Constitutional Law, 2nd ed., Mineola, NY: Foundation, 1988.
Cases and Statutes Cited
See also Abortion; Doe v. Bolton, 410 U.S. 179 (1973); Privacy; Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Right of Privacy; Roe v. Wade, 410 U.S. 113 (1973); Substantive Due Process; Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Vagueness Doctrine; Void for Vagueness