Colautti v. Franklin


DOCKET NO.: 77-891
DECIDED BY: Burger Court (1975-1981)

CITATION: 439 US 379 (1979)
ARGUED: Oct 03, 1978
DECIDED: Jan 09, 1979

Carol Los Mansmann – for appellants
Roland Morris – for appellees

Facts of the case


Media for Colautti v. Franklin

Audio Transcription for Oral Argument – October 03, 1978 in Colautti v. Franklin

Audio Transcription for Opinion Announcement – January 09, 1979 in Colautti v. Franklin

Warren E. Burger:

The judgment and opinion of the Court in 77-891, Colautti, the Secretary of Welfare of Pennsylvania against Franklin will be announced by Mr. Justice Blackmun.

Harry A. Blackmun:

Well, this appeal comes to us from the United States District Court for the Eastern District Court of Pennsylvania.

It is still yet another in the series of cases relating to state regulation of abortion procedures.

At issue here is the Pennsylvania Abortion Control Act of 1974 which is enacted over the governor’s veto in the year following this Court’s decisions in Roe against Wade and Doe against Bolton.

Section 5 (a) of that 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 he determines that the fetus is viable or the statute reads if there is sufficient reason to believe that the fetus may be viable then he must exercise the same care to preserve the life and health of the fetus as would be required in the case of one intended to be born alive.

He must also use the abortion technique providing the best opportunity for the fetus to be born alive so long as a different technique is not necessary to preserve the life or health of the mother.

Section 5 (d) imposes a criminal sanction for a violation of the foregoing statute.

The present suit was instituted by the appellees, a licensed physician and certain organizations against Pennsylvania officials challenging the statute on constitutional grounds.

A three-judge Federal District Court among other things held that Section 5 (a) was unconstitutionally vague.

In an opinion filed with the clerk today, we reaffirm that ruling and hold that the viability determination requirement is void for vagueness and that the standard of care provision is likewise impermissibly vague.

I’m authorized to say that Mr. Justice White has filed a dissenting opinion and joined therein by the Chief Justice and by Mr. Justice Rehnquist.

Warren E. Burger:

Thank you Mr. Justice Blackmun.