Decision: Colautti v. Franklin (1979)
Abortions and Privacy
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Is it reasonable for the government to force doctors to protect the life of a fetus by whatever means necessary if that doctor discovers, during the course of an abortion, that the fetus may be viable? Just how far can the government go in requiring a doctor to put the interests of a fetus against those of the mother?
Background Information
In 1974 the Pennsylvania legislature passed, over the governor's veto, a law which required a doctor performing an abortion to take whatever actions deemed necessary to protect the life of a fetus if the doctor determined that the fetus is or may be viable (except when the life of the mother was in danger). This law was challenged by John Franklin, medical director at a Pennsylvania Planned Parenthood affiliate. A District Court struck down the law and this ruling was challenged to the Supreme Court.
Court Decision
The Supreme Court upheld the lower court ruling and found the Pennsylvania law unconstitutional, arguing primarily that it was too vague to pass muster. According to the Court, a valid criminal law must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." This, however, was not the case with the law under consideration because it was not clear if the standard of "may be viable" is based upon the physician's personal experience and judgement or, rather, upon the "perspective of a cross section of the medical community or a panel of experts."
The Court also had a problem with the "may be viable" standard. It was argued that the standard of "is viable" could be reasonable, but the "may be viable" standard began to carve out a new category not authorized by the Supreme Court's ruling in Roe v. Wade. In that decision, the Court held that the government had an interest in protecting a fetus when it had reached the stage of viability, but the Pennsylvania law was setting standards based upon the mere possibility of viability.
That, however, was not something the government was authorized to do - decide when and how a fetus should be treated as "viable."
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 quality of the available medical facilities; and other factors. 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. 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.
Significance
This decision not only emphasized the Roe v. Wade principle that a state interest in protecting a fetus begins with viability, but also the fact that a decision about abortion is fundamentally one which is made between a woman and her physician, an arena in which the authority of the government is limited, at least when it comes to issues so personal and fundamental as that of abortion.
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