Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 9

Ultrasound of fetus at 20 weeks. (Letuve/Dreamstime)

1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.

This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.”

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