COLAUTTI v. FRANKLIN

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Argument of Carol Los Mansmann

Chief Justice Warren E. Burger: We'll hear arguments next to Number 891, Beal for the State of Pennsylvania against Franklin.

Mrs. Mansmann I think you may proceed whenever you're ready.

Ms Carol Los Mansmann: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

I am especially appointed Assistant Attorney General for the Commonwealth of Pennsylvania.

I serve as trial counsel with my co-counsel and husband, Jerome Mansmann, who was also especially appointed and we have been representing the Commonwealth's interest in this litigation since it's inception in 1974.

The case that we bring before you today involves only one Section of Pennsylvania's Abortion Control Act which was passed in 1974.

All other challenges and issues have been resolved upon remand by this Court to the lower court.

In a nutshell, Pennsylvania law provides or prohibits all abortions after viability except for the abortion is necessary to preserve the mother's life or health.

This particular Section which is 6 (b) is not in dispute, is not an issue here before this Court.

Justice Potter Stewart: But -- and the cutoff time is after viability and --

Ms Carol Los Mansmann: Yes Your Honor, that is correct.

Justice Potter Stewart: Is that defined in terms of the length of pregnancy or (Voice Overlap)?

Ms Carol Los Mansmann: No, it is not Your Honor, it's the capability of the fetus to survive outside the mother's womb although with artificial aid.

Justice Potter Stewart: But it says after viability not after likelihood or possibility of viability?

Ms Carol Los Mansmann: That is correct Your Honor.

In Section 5 (a) which does not prohibit abortions, but which is the subject of this appeal, the physician is required prior to perform an abortion to make a determination that the fetus is not viable, based on his own experience, judgment or professional competence.

Chief Justice Warren E. Burger: Does that mean that his judgment and experience must be exercised in terms of reasonable medical certainty?

Ms Carol Los Mansmann: Certainly it would Your Honor.

And I think what the legislature clearly intended there and it exemplifies that in the Section that immediately follows that particular phrase in giving in objective standard for physicians to follow.

Because if the physician in his determination finds that the fetus is viable, and here is the offending language which forms the basis now of this appeal, “Or if there is sufficient reason to believe that the fetus may be viable.”

Then the physician must utilize a standard of care that is an abortion method which would provide for the rights of the unborn child, so long as another method is not necessary to preserve the life or health of the mother.

Chief Justice Warren E. Burger: Would you say that that language also must be read as meaning that the decision must be based on reasonable medical certainty as medical opinions are always gauged in litigation.

Ms Carol Los Mansmann: Absolutely Your Honor and I think the point I'm trying to make is that by adding the words or if there is sufficient reason to believe that the fetus may be viable, the legislature clearly intended to say to physicians in this type of practice in performing this highly specialized skill, that an objective standard will be placed upon them and that is reasonable medical certainty.

We are not judging physicians in hindsight after an autopsy might show that, for example the fetus might have been have greater weight or of longer gestational age.

What we are doing is saying to the physician, here is an objective standard for you to follow that is sufficient reason to believe that the fetus may be viable.

Unknown Speaker: May I ask a question?

Ms Carol Los Mansmann: Yes, Your Honor.

Unknown Speaker: What is may be viable -- had to viable?

Ms Carol Los Mansmann: Your Honor it is -- in a sense it adds nothing to the concept of viability.

It is -- it does not intend and the legislature clearly did not intend to add an additional time period.

Unknown Speaker: What the state did --

Ms Carol Los Mansmann: It's a semantical -- if I may, it's a semantical discussion attempting as Mr. Justice Marshall said in Grayned versus Rockford, we're condemned to expressing ourselves in language and in the hiatus between the law and medicine, we are attempting not to carve out a time period, but to say semantically, this particular fetus has the statistical probability that medical science deals with and not probability, statistical probability is one of survival.

Justice Potter Stewart: Maybe it doesn't imply probability, it just implies possibility, doesn't it?

Ms Carol Los Mansmann: No, Your Honor.

Medical statistics --

Justice Potter Stewart: But as I read the dictionary and as I understand the English language, it doesn't say it's likely or being, it says might be.

Ms Carol Los Mansmann: With all due respect to the court Your Honor, we are dealing -- we are not dealing here with dictionary definitions.

We are concerned with what our physicians --

Justice Potter Stewart: But we're dealing with the English language, aren't we?

Ms Carol Los Mansmann: Of course Your Honor.

Justice Potter Stewart: And if something maybe so, then it's possibly is so.

It is not probably so.

Ms Carol Los Mansmann: Except that for physicians who deal with this problem all the time, statistical probabilities is the reasonable medical certainty that they deal with.

No physician will say or post it --

Justice Potter Stewart: But that's not what the legislative language says.

Justice Lewis F. Powell: Are you saying the language means the same, that viable and may be viable mean the same thing?

Ms Carol Los Mansmann: Your Honor, I don't wish to just take out the terms “may be viable.”

I would like to use the entire phrases the legislature did.

If there is sufficient reason to believe, sufficient reason to believe that the fetus may be viable.

Unknown Speaker: Maybe possible, sufficient reason for whom to believe, this being for the doctor who's going to perform the abortion or for somebody looking at it later?

Ms Carol Los Mansmann: Well certainly Your Honor, he is on notice that an objective standard is there and it puts him on notice ahead of time.

Unknown Speaker: Well, let me just be sure I get it, supposing he makes a determination that it's not viable, he says, “I'm satisfied, it's not viable.”

And later on, three other doctors say, “Well, he made a wrong determination, it might have been viable.”

Would this -- well, how do you handle that?

Ms Carol Los Mansmann: Your Honor, what we would be judging is not so much that initial determination.

We are judging now the standard of care he should have utilized because --

Unknown Speaker: That's not his subjective determination that's controlling?

Ms Carol Los Mansmann: It is his determination with the reasonable degree of medical certainty based upon the facts known to him in judging whether or not this fetus is viable.

And we realized that the whole medical terminology of the word viability expresses a very fluid concept, and it expresses the certainly the potential capacity of the fetus to survive outside the mother's womb.

What was expressed by this Court in Roe and Doe and you don't know if the physicians in the lower court on either side of the issue disagreed with that definition.

What they disagreed upon was the gestational age at which that is achieved.

And this Court in Danforth and the legislature in Pennsylvania clearly chose not to accept gestational age.

Justice Thurgood Marshall: What do you do with the difference between the small one doctor in the town in Philadelphia and Pittsburg hospitals or what may be, does that rule of doctor have what the word was yesterday?

The answer is no.

Ms Carol Los Mansmann: Yes.

Justice Thurgood Marshall: Isn't that right?

Ms Carol Los Mansmann: Well, if I understand your question Your Honor, are you saying is the standards of a big city hospital and a big practice to be imposed on some physician in a small town who doesn't have available to him, let's say a neonatal center or something right available, of course not, we are judging him by what is available to him.

Justice Thurgood Marshall: What does the statute say there?

Ms Carol Los Mansmann: Clearly, it does Your Honor.

It says it judges him by his own professional competence and judgment and says, and if there is sufficient reason to believe that the fetus may be viable.

It's our position that those words are no less unclear to the medical profession, because its -- the medical profession is not every practitioner, medical practitioner.

Justice Thurgood Marshall: What happens if you called in three experts, real experts and they don't agree?

Ms Carol Los Mansmann: Your Honor, if they have -- it is our belief they will not disagree, that as far as the viability of this --

Justice Thurgood Marshall: Well, but my hypothetical is they did disagree, what do you do?

Ms Carol Los Mansmann: Then I think that there would not be sufficient evidence upon which to convict in the criminal law.

And that's what the statute calls into play.

It doesn't say, “Well, if that is the situation, then the first degree murder charge will lie or a manslaughter will lie.

It calls into play the criminal statute and I maintain in that situation --

Justice Thurgood Marshall: So in any way as a doctor, I can be sure if they get three experts and they all agree.

Ms Carol Los Mansmann: The question is will the prosec --

Justice Thurgood Marshall: Isn't that right, isn't that right?

Ms Carol Los Mansmann: Has the prosecution proven its case against the defendant.

Justice Thurgood Marshall: Well, wouldn't it be the only way I could be sure?

Ms Carol Los Mansmann: Certainly Your Honor and I'm sure you could probably get experts to testify on any side of any issue.

Justice Thurgood Marshall: Oh, I just happen to know some people, they couldn't afford three experts.

Ms Carol Los Mansmann: Well, we're talking about --

Justice Thurgood Marshall: I know some people that couldn't afford three experts.

Have you pushed me, I know some that couldn't afford one.

Well, how did they get their abortions?

Ms Carol Los Mansmann: Well, I'd certainly have to agree with you Your Honor.

I probably couldn't afford three experts as well.

But my point is that we don't have a battle of the experts here.

The experts agree that with respect to viability, yes, it's a subjective judgment.

Yes, the physician is being asked to take statistical probabilities and place that whole matrix of medical research upon his particular patient.

We are looking at what is known to him, what is known to the medical profession in his community and in his practice.

We are talking about a highly specialized --

Justice William J. Brennan: Ms. Mansmann, you -- I think you've taken inconsistent positions.

You said a moment ago that if you get three experts to testify at anything, isn't there a risk that a doctor in good faith could conclude that a fetus is not viable and nevertheless that the prosecutor might be able to get three experts who would disagree.

Ms Carol Los Mansmann: I think that's probably an underlying question to all of us.

The fear that maybe responsible physicians --

Justice William J. Brennan: Well, what's your answer to my question?

Ms Carol Los Mansmann: And -- yes.

And I think Your Honor, that that is not the position here.

I think that what a responsible physician will do --

Justice William J. Brennan: You don't think that could happen?

Do you think that could happen or could not happen?

That's my question.

Ms Carol Los Mansmann: I think that could not happen and the reason being --

Justice William J. Brennan: It could not happen when a doctor in good faith concluded that the fetus was not viable and that there will be three doctors who would -- could be found, who would testify in the witness stand that he was wrong.

You don't think that could ever happen?

Ms Carol Los Mansmann: I think Your Honor with respect to -- now, the whole range of the whole possibility of finding experts is one whole distinct problem.

My point is the responsible physician --

Justice William J. Brennan: The prosecutor is not short for funds to find experts, is he?

Ms Carol Los Mansmann: That's right.

Justice William J. Brennan: All right.

Now, you are saying that he could not find three experts who could ever give such testimony whenever a doctor in good faith was satisfied that the fetus was not viable.

That could never happen here, is that what you're saying?

Ms Carol Los Mansmann: Your Honor, it's very difficult to make that judgment.

Justice William J. Brennan: Isn't that your problem?

Ms Carol Los Mansmann: What I'm saying is, the responsible physician who makes a good faith determination on the medical evidence in front of him with a reasonable degree of medical certainty will not be in that particular position of being faced with the criminal law.

What the appellees are arguing here and especially with the amicus briefs are arguing is that physicians are immune to the law.

Their judgments and their judgments alone are to govern.

Justice William H. Rehnquist: Well, counsel --

Ms Carol Los Mansmann: Now, we -- yes Your Honor.

Justice William H. Rehnquist: You have a number of different standards, they're traditionally important to the law, one is good faith, the other is negligence and other is gross negligence or recklessness, another is intent to kill.

What standard does this statute apply?

Ms Carol Los Mansmann: This statute sends to the criminal law, a determination based on the particular facts.

So, if in fact, the Commonwealth could prove scienter, and could prove for example under Pennsylvania law, a specific intent to kill, there may in fact be a murder indictment.

Justice William H. Rehnquist: Well, nobody -- I don't think anybody quarrels with that, I think the difficulties are when you begin going down the scale from actual intent to kill.

And the -- I think the question of some my colleagues had asked reveal some puzzlement as to just what standard it is the Commonwealth is imposing here.

Ms Carol Los Mansmann: With respect to the statute, certainly it's the objective standard based on reasonable medical certainty.

When we call on to play the criminal law, then the criminal law, the Commonwealth in Pennsylvania will govern with respect to each individual action.

Justice William H. Rehnquist: Well, what is -- what standard does the law impose?

Ms Carol Los Mansmann: It depends, Your Honor upon the particular facts and what category they fall into, whether it's homicide of the first degree or murder of the first degree, or third degree or manslaughter.

Each individual case must be judged separately and that's what this particular statute was designed to do.

Justice William H. Rehnquist: What standard is required for a conviction of physician of manslaughter in Pennsylvania, is simple negligence sufficient?

Ms Carol Los Mansmann: No, it is not Your Honor.

It's willful and wanton misconduct, gross misconduct which brings about the death.

Justice William H. Rehnquist: Something more than simple negligence, but less than actual intent to kill.

Ms Carol Los Mansmann: That is precise Your Honor, that is precise.

Chief Justice Warren E. Burger: Now that would embrace would it in your view a bad judgment suppose you have a general practitioner who does not specialize in obstetrics, but he is -- finds himself in a situation where he must make the judgment under this statute.

Is he not at risk on the basis of your own suggestion about the experts, that in making the judgment he made not three, but 12 obstetricians might say he was wrong and meanwhile he is at least open possibly to a criminal prosecution, isn't he?

Ms Carol Los Mansmann: Theoretically, he might be.

Under this statute, judging him, his professional competence and expertise and what is known to him about his patient at that time, he would not be in any difficulty Your Honor.

Chief Justice Warren E. Burger: He may -- he might not be convicted, but that's not the only question that we deal within a criminal statute, is it?

Ms Carol Los Mansmann: But the real problem here is that we keep referring to the responsible physician.

And in that time period between the invalidation of Pennsylvania's original and maybe 100-year-old abortion statute, the invalidation of that and the passage of this, the Pennsylvania legislature and the governor as well held hearings, public hearings to determine the state of medical arts and problems dealing with abortion in Pennsylvania.

And one conclusion came to the forefront with respect to abortion practice; physicians were in many respects creating a crisis with medical care insofar as the woman patient is concerned.

The same physicians bitterly thought in the court below the requirement that they had to test for pregnancy before they would perform an abortion.

Secondly, they also bitterly thought any regulation that would require them to explain the procedure and the complications to their patient and one witness in particular presents a rather dramatic story.

Her name is Mary Ellen Gallagher, she was a news reporter for WCAU TV in Philadelphia and she post as a teenager who fear that she was pregnant.

She went to numerous abortion clinics and hospitals and spoke with doctors there.

She absolutely certifiably was not pregnant.

But to a one they put her up on the table and were beginning an abortion before she stepped down.

No pregnancy testing for the most part, no responsible medical care that we are talking about here.

So, Pennsylvania has come to the conclusion -- the legislature has -- that we need legislation in this area to, first of all, prior to viability to protect maternal health.

And now we're saying by the position taken by appellees and the amicus as far as being immune from prosecution in this area, a crisis with respect to the viable that maybe defective child.

Justice Thurgood Marshall: Mrs. Mansmann -- excuse me, go ahead Mr. Chief Justice.

Chief Justice Warren E. Burger: Counsel, we aren't primarily concerned here with the good faith of the people who have presented views on this.

Isn't our task limited to determining whether the State of Pennsylvania has undertaken to protect human life with the kind of precision that is traditionally required in criminal penal statutes, isn't that the only question before us?

Ms Carol Los Mansmann: Yes.

Will men who have to deal -- men and women I should say, who have to deal with this problem on a daily basis understand what is prescribed of them.

And we maintain that for the physicians who deal with this, the responsible physicians, they understand what the terminology is.

And I point to the American College of OBGYN and their statement twice in the last few years with reference to what they call ethical considerations in abortion practice.

Justice Thurgood Marshall: Well, I'm not interested in ethical abortion.

I'm interested in the law which tells a doctor that if you made a mistake, you go to jail.

Ms Carol Los Mansmann: Your Honor, the mistake that we are talking about --

Justice Thurgood Marshall: That's what I'm worried about.

That's what I'm worried about.

Ms Carol Los Mansmann: The mistake --

But, we're talking about the criminal law, we have to show scienter Your Honor, okay.

The responsible physician who merely makes a mistake, merely makes a mistake, based on later in autopsy or material not known to him --

Justice Thurgood Marshall: Well, what happen if he makes a mistake and cuts your head off and instead your foot.

Is there a statute that punishes him for that?

Ms Carol Los Mansmann: Well, I would presume that decapitation would bring about death certainly --

Justice Thurgood Marshall: But is there a statute that punishes that?

Ms Carol Los Mansmann: Absolutely, he is judged by the --

Justice Thurgood Marshall: What statute is that that says a doctor --

Ms Carol Los Mansmann: Manslaughter, Your Honor.

Justice Thurgood Marshall: No, but this one doesn't --

Ms Carol Los Mansmann: It falls right into place.

Justice Thurgood Marshall: This one isn't a general statute.

This one only applies to people who perform abortions.

Ms Carol Los Mansmann: And it calls him to play the realm.

Justice Thurgood Marshall: Is that correct?

Is that correct?

Ms Carol Los Mansmann: Yes Your Honor but it calls him to play all of the criminal laws.

Justice Thurgood Marshall: Well, what all this --

Ms Carol Los Mansmann: It doesn't set forth that this would be manslaughter with the first degree of murder.

Justice Thurgood Marshall: I give up.

Ms Carol Los Mansmann: Okay.

Justice Thurgood Marshall: I mean, I would like to get a question out.

So, just go right ahead.

Ms Carol Los Mansmann: I'm sorry, Your Honor, if I've been disrespectful I certainly apologize for that.

Justice Thurgood Marshall: Oh, not at all.

Ms Carol Los Mansmann: The second provision, which requires the standard of care physician might use was not ruled upon by the lower court.

And although we repeatedly ask the court to consider problems of severability and the possibility of severing, if in fact they were correct that it carves out an additional time period in which the state has no interest with -- that's compelling in fetal life.

We ask them to sever the offending language thereby leaving intact all the wording with respect to viable life.

For some reason the court refused to do that and on remand from this Court simply said, “We stand by our prior position.”

And we are saying to this Court that if you were not convinced that the wording is correct, if we lose this over poor choice of words we are saying, remain intact the rest of the statute, their correlative clauses that can be read certainly apart from each other, that was has been proposed here by the appellees.

So, read them in light of the viable unborn child.

Chief Justice Warren E. Burger: What criminal statute said not in frequently fail because of the choice of words, do they not?

Ms Carol Los Mansmann: Oh, that is correct Your Honor, absolutely.

And we would grant that and we say here though physicians know what's prescribed of them and I began to mention the American College of OBGYNs.

They recognize what they call the duty and obligation of the physician to what they describe as the possibly viable fetus.

So I'm saying they recognize their duty and obligation.

But my concern here is that we're going to walk out of here and lose this case because of a poor choice of words and physicians now will fill themselves in the position of being able as the amicus are arguing and the appellees have argued in the lower court that is only parental choice that governs when we're talking about viable life or rather -- what I considered to be a rather shocking statement that I would like to read to you from the appellees brief says that a fetus is not viable unless it has meaningful life.

They're asking this Court to extend the concept, okay.

So that if through amniocentesis and quite possibly a failure of the original culture to grow and testing, a couple finds themselves after viability to be -- soon to be the parents of a deformed child and they don't want the child.

They are asking this Court to say that life is not meaningful, therefore the child is not viable and consequently the parents now have the choice to destroy that child in utero.

And they said a child doomed to lose all function and become vegetable by the age of three and to die by the age of seven or eight is hardly capable of “meaningful life” from their discussion on viability.

And with all due respect to this Court I don't think any of us are in the position to say that life is not meaningful because it suffers a handicap.

Our legislature has clearly chosen to -- regardless of handicap or birth defect or race or sex or whatever, represent the interest of the viable child in utero, the viable child and we are asking this Court to recognize that and make a positive statement with reference to the right of the state where it is now chosen to represent the interest of that viable but maybe defective unborn child.

Thank you Your Honor.

Argument of Roland Morris

Chief Justice Warren E. Burger: Very well Mrs. Mansmann.

Mr. Morris?

Mr. Roland Morris: Mr. Chief Justice and may it please the Court.

The lower court in this case chose two distinct if interrelated lines of analysis with which to approach this statutory language.

Their first line was based on an assessment of the substantive legal architecture which this Court mainly through Mr. Justice Blackmun's opinions has accorded the abortion question as a whole.

The second line of analysis which the lower court employed related to that doctrine generally known as the void for vagueness concept as applied by this Court to its work.

The lower court found and I submit to you here correctly that with respect to both lines of analysis the Pennsylvania statute failed its constitutional tasks.

First, it carved out areas in which the State intruded its interests in the abortion context which areas precede that time with in which this Court has found a State had a compelling interest.

Secondly, the court found that the statute as applied to an individual under whatever source you use in the void for vagueness analysis failed to provide sufficiently precise information with respect to which an individual could judge his criminal liability and I might add there is a civil liability concept in the statute as you will see paragraph two.

Let me first, if I may, address myself to the substantive abortion question as it has been described by this Court, I think the major two cases that we would all agree were Roe and Danforth as they apply in this case.

We don't have here a Maher case or a Bellotti case.

We have here a straight Roe statute passed after Roe which was very similar to the statute in Danforth.

The court will remember that Danforth also included as did the Pennsylvania statute issues of consent but they are not now before the court.

The Danforth -- court likewise was faced with a question respecting what protection had to be given to the fetus and the Danforth statute provided somewhat more sweepingly than the Pennsylvania statute that if an abortion were to be performed, the fetus had to be accorded that method of performance which would most certainly assure its life if it were viable.

That was the way the Danforth statute approached the situation.

Incidentally both the Danforth statute and the Hodgson statute provided that if you did deliver such a viable fetus for the fact that the parents didn't want it and that provided a sort of an escape clause, the state would take over the fetus.

So the motive was acknowledged by the statutes.

This Court in Danforth held that to require the fetus to be delivered in that fashion even though it were in the first trimester for example carved out an area to which this Court had denied States entrance and properly so because the state entering an area of individual liberty of individual privacy intrudes as a rather blunt instrument.

And you have laid out areas in concept at least in which a state may not intrude.

It is these areas which the “may be viable” language, the lower court found and I submit on the face of the language let alone its interpretation, clearly intrudes.

Chief Justice Warren E. Burger: Are you speaking of an intrusion on the parents' right or the intrusion on the physician?

Mr. Roland Morris: I'm speaking of an intrusion on both rights, sir, and of course under Doe, I come before you asserting the rights of the parents.

However, I think that was decided in that fashion by the lower court properly under Doe and remains the concept in this Court.

I therefore assert both rights.

I think that underlying what Mr. Justice Blackmun said in connection with those rights was an acknowledgment by the court that as you dealt with this area and that kind of private consultation, it was probably impossible and definitely unwise to seek to pull those interest apart for the purpose of legal analysis.

So I come before you asserting both rights sir.

I would like to direct the Court's attention in connection with the “may be” language and what kind of area it carves into under the abortion architecture to the actual evidence of record.

It is not true that there was anything which could be called a consensus regarding the definition of viability, let alone “may be viable.”

The appellee Dr. Franklin in this case placed viability at approximately 28 weeks.

Dr. Gerstley, who testified on behalf of the plaintiffs, here the appellees, put viability at about 24 weeks.

Dr. Keenan who testified on behalf of the appellants here put viability at 20 to 26 weeks and was fairly soft in his judgment.

Dr. Mecklenburg the lower court read as fairly placing viability or at least a high possibility of viability at 20 weeks.

Dr. Hervada who was called by the --

Unknown Speaker: Mr. Morris I'm not sure these differences and time periods necessarily reflect the difference in definition of viability, do they?

The statute attempts to define it in terms of capability of surviving and so forth.

I gave you those, sir, for this reason.

Unknown Speaker: I think your opponent conceded this that there are different time periods.

Mr. Roland Morris: I suggest that to the court for this reason, I think it is perfectly proper as the court has to define viability in the sense that it does, that does not mean like Connolly or Winters that a state legislature may take that concept and use that language to apply it to an individual.

It may not be sufficiently precise for that purpose although it maybe sufficiently precise for this Court to use it as a concept which will in Palko language provide order to liberty.

You may be able to do it, the legislature you may not.

Chief Justice Warren E. Burger: What if (Voice Overlap) before this Court now?

Mr. Roland Morris: Yes sir.

Chief Justice Warren E. Burger: Whether this statute provides sufficient guidance informs a physician when he will be transgressing the criminal law as distinguished from any other liability he may have.

Mr. Roland Morris: Yes sir.

Chief Justice Warren E. Burger: Isn't that the only question?

Mr. Roland Morris: I believe it is sir and one might bear in mind that if Dr. Franklin aborted a 28-week fetus, he might well be faced in a subsequent criminal prosecution by Drs. Mecklenburg and Keenan who might well be more articulate to a jury than he was and who might well convince that jury that it was at least wanton disregard if not knowledgeable disregard of life and he should not be so inhibited.

That inhibition also applies in the vagueness concept but that inhibition is what -- is carving out in this --

Justice Byron R. White: Oh, what if the doctor who was just attending the mother in a normal birth and the baby died?

Now I suppose the doctor faces a possibility of criminal negligence.

And if two doctors testified against him at the trial they might be more articulate than he was.

That's the standard isn't it that's applied in this case, the same standard as if he were attending a normal birth.

Mr. Roland Morris: You are coming, however sir, to --

Justice Byron R. White: Well is that right or not?

Is that the standard the statute applies?

Mr. Roland Morris: The language of the standard is the same.

The method of its application is different.

Justice Byron R. White: Well, maybe but nevertheless in all sort of situations including attending a normal birth a doctor might be charge with criminal negligence?

Mr. Roland Morris: Yes and may I explain --

Justice Byron R. White: And have to face a jury trial on it, is that right?

Mr. Roland Morris: The -- in -- the language of the standard you use is precisely correct, sir.

May I explain why in application it is different?

We are speaking now of an area that is not only highly emotionally charge but also of an area in which there is more than substantive disagreement.

Justice Byron R. White: Like attending a birth of a -- attending a normal birth.

Mr. Roland Morris: Considerably, sir.

The evidence in this record shows and the lower court found a wide disparity in the time periods but that isn't all one is face with when making this judgment unlike a live birth.

With a live birth you have and can look at a baby whose chances of living are reasonably well established.

Here we're dealing with exactly that period of time when it's impossible, I submit on this record, to establish the viability let alone the “may be viable” and you can't even look at the fetus directly, although there are some new techniques which were providing that.

If I may, sirs, bear in mind that the doctor does at least takes at least four steps each of which involves an estimate, the doctor makes an estimate.

Justice Byron R. White: Well, aren't we talking about under the statute if the doctor determines -- makes a determination that the fetus may be viable then he simply engages -- he performs the abortion in a manner that would be best calculated to preserve life.

Is that what the statute requires?

Mr. Roland Morris: The difficultly sir -- oh, yes it does.

Justice Byron R. White: And -- but if he makes the determination that it won't be viable then he need not do the abortion in that manner.

Mr. Roland Morris: Yes.

Chief Justice Warren E. Burger: Does he not have another alternative if he determines on reasonable medical certainty that the fetus may be viable, he can decline to perform the operation, can he not?

Mr. Roland Morris: Yes, and in each of those cases --

Justice Byron R. White: But he could also perform it as long as he use the methods best calculated to preserve the life of the fetus.

Mr. Roland Morris: In both your case Mr. Justice White and in the case of the Chief Justice, I ask you to look carefully at what you are doing to that area in which you said the court should not and may not intrude, the state should not and may not intrude.

Justice Byron R. White: Can't the doctor always protect himself though by using what perhaps wouldn't be so questionable or arguable, the -- use the method, the aborting method best calculated to preserve the life of the fetus?

Mr. Roland Morris: I submit to you --

Justice Byron R. White: Isn't that what's at issue or not?

Mr. Roland Morris: I -- it is at issue and I submit to you at that point in time you are clearly inhibiting, clearly carving out an area which may run well into --

Justice Byron R. White: Oh, it may be -- that may be, but all you're requiring the doctor to do is to use that method best calculated to preserve the life of the fetus.

Mr. Roland Morris: In that case I would have to ask Mr. Justice --

Justice Byron R. White: You've been talking the entire time about the decision to this -- of what -- about viability.

Mr. Roland Morris: Whether it is.

Justice Byron R. White: But even that's a difficult question if he determines that it's may be viable he merely has to use some -- and I know you don't think the word merely would be appropriate, but he nevertheless just has to use that method best calculated to preserve the life of the fetus.

Mr. Roland Morris: In this case -- yes.

I think Mr. Justice White, the case which settles that issue is the Danforth case because you could ask the same question to the Danforth case and say why don't we just require every doctor to deliver every fetus in that way which will most likely save the life of the fetus.

That resolves the entire problem if you adopt that line of reasoning but that is the line of reasoning which the court has not adopted and I submitted would be tragic if they did adopt it because -- yes sir?

Justice Byron R. White: Go ahead.

Mr. Roland Morris: I didn't want to interrupt you sir.

Justice Byron R. White: No, you go ahead.

Mr. Roland Morris: I simply wanted to say that the counter veiling question, the counter veiling pull and there are many of course in this case is that privacy pull, wherever you find the source of it.

That decision at some point should and does under the decisions as you written into date belong to the woman and her doctor.

And that decision as Danforth made it clear and I think Roe --

Justice Byron R. White: So you're suggesting that Danforth held that the mother -- the putative mother and the doctor are entitled to have any method of abortion they want even though the fetus may be viable.

Mr. Roland Morris: Yes sir, because -- for one reason may be viable is a point which I think the record discloses cannot be determine in a precise enough way to permit the State with its panoply of power, its policeman, its judges to intrude on that decision.

Justice William H. Rehnquist: Would you go so far as to say that the woman and the doctor at a certain stage are entitled to decide that they want the fetus to die even though it might be made viable?

Mr. Roland Morris: I would, sir, in the first trimester --

Justice William H. Rehnquist: How about beyond the first trimester?

Mr. Roland Morris: In the second, yes, I would sir but I don't think you face that it --

Justice Byron R. White: You don't have to say that in this case.

Justice William H. Rehnquist: You have to.

Mr. Roland Morris: I don't think you face that issue in this case for this reason.

There is enough -- you can face it and I will and I will go that far.

However, in diagnosing that particular standard which will support a criminal statute you have a whole separate problem, how do you determine it, how does the individual know.

Justice Byron R. White: But would you be making this argument is the statute were limited to civil liability?

Cause the statute does say civil or criminal, as might be applicable in the case of normal birth?

Mr. Roland Morris: Yes, it does, sir.

Justice Byron R. White: So would you be making this argument if it were just a civil suit?

Mr. Roland Morris: Yes, I would sir, although again I do not address myself here to that argument.

I submit to you --

Justice Harry A. Blackmun: Mr. Morris --

Mr. Roland Morris: Yes sir.

Justice Harry A. Blackmun: May ask this question?

If the clause that includes a may be viable language were omitted from this section of the statute, would that meet your objections?

Mr. Roland Morris: No sir, but on the ground for a reason that I do not believe is before this Court.

As I think I suggested moment ago and I think --

Justice Harry A. Blackmun: Would the remaining language be subject to an attack for voidness?

Mr. Roland Morris: Yes sir, that's precisely where I would now go with my argument.

It does not mean --

Justice Harry A. Blackmun: Would the mere requirement that a doctor determine viability in view of all that you've said about the difficulty of that present a voidness issue in any of these statutes?

Mr. Roland Morris: If it would depend on whether they were criminal sanction and what he had to do when he determined viability.

If you assume that he had to determine viability and you applied a criminal sanction for reasons not before you in this case but based on Winters' and Screws' I would have to say that that would be unconstitutional.

It is not a hasten to add to say --

Justice Harry A. Blackmun: I want to understand you -- that the question of viability would have to be left to the good faith discretion of the physician in every case that he could not be held liable, criminally or regardless of whether or not he exercised his judgment with gross recklessness?

Mr. Roland Morris: Your Honor that's not how I reach that result and that result I would not concur with.

I reached the result for this reason, you do not sit here as a legislature drafting the precise language under Palko and Griswold I see your work as defining the concept but that does not mean that the adoption of your language in a statute will satisfy the requirements of certainty.

And I believe, although this question is not before you but having been asked that a state legislature implementing the concept which you have structured would be required to be more precise than your language is and would also be required under Winters' and Keyishian is another one to move or wait its language to provide a breathing space for that privacy right which we are discussing here today.

Justice William H. Rehnquist: Do you think doctor that can't be held to the same responsibility in the performance of an abortion that he could be held to be -- held to in the performance of appendectomy?

Mr. Roland Morris: I believe he could be held to the same performance sir.

Justice William H. Rehnquist: Then what if Key -- well, you've said there's breathing space necessary in the case of an appendectomy too?

Mr. Roland Morris: I think at least in the case as I saw your question I was looking to a civil liability and in the case of civil liability these penumbras surrounding the Bill Of Rights, this Fourteenth Amendment Due Process Right, I don't think has the same impact.

In fact, it has no impact in the line of criminal question.

Justice William H. Rehnquist: How about criminal liability?

Mr. Roland Morris: Oh, in a criminal liability case, sir, I think to the extent you found it to be a private area and I have to think about an appendectomy, I would think you will have to give some consideration to moving the test, the precise test sufficiently out so that it was clear that there was a criminal act so that there wasn't a vagary of distinction.

Justice William H. Rehnquist: Well --

Mr. Roland Morris: But I don't think that's his -- as personal in area over here.

Justice William H. Rehnquist: You say -- if you say it's clear that it's a criminal act, I'd like to ask you the same question I asked your opponent.

Is the state entitled to make criminal gross negligence on the part of a physician in performing a recognized medical procedure whether it's abortion, appendectomy or heart surgery?

Mr. Roland Morris: Yes, I would think so if it were precise enough on what the guidelines were.

Justice Byron R. White: Well, what if the state just passed this very same law with respect to the third trimester?

Mr. Roland Morris: If it may be viable during the third trimester?

Justice Byron R. White: The doctor has to make determination and then use the best methods available to save the life of the fetus.

Mr. Roland Morris: This requires me and I'm quite willing to do so --

Justice Byron R. White: Well is that vague or not?

Mr. Roland Morris: No sir.

Justice Byron R. White: Is that an impossible determination or not?

Mr. Roland Morris: No, sir, and it -- but it requires me to take a step under Roe which I think and one always hesitates to interpret the language of Mr. Justice Blackmun who wrote it, I --

Justice Byron R. White: So you have been -- in your entire argument --

Mr. Roland Morris: I'm trying sir, I'm trying to -- and I read Roe, sir, originally as requiring a flexible standard and you made that clear in Danforth.

As flexible as it is whatever line the state legislature draws must be one that is clearly not invasive.

That's why I answered Mr. Justice Powell the way I did.

Justice Byron R. White: So you say in my hypothetical on the third trimester that it would not be vague?

Mr. Roland Morris: No, I think we could establish now although I don't believe this record does it and the question --

Justice Byron R. White: Even though a doctor might determine that this baby is -- fetus won't be viable and two doctors might disagree with him before a jury.

Mr. Roland Morris: I believe and I speak as to the record now that we have reached a medical point given ultrasound where a definition placed at the third trimester would probably stand up and properly so.

I think it would inevitably have to subject to constitutional testimony at a legislative hearing and probably in the court, but I think it would stand up because it is sufficient definite.

You're making two decisions there.

It's clearly definite if you can get the age close.

The other decision is have you invaded that area which I submit to you Roe and Danforth established as protective.

And I think now we can demonstrate that in the third trimester you would not be invaded.

Chief Justice Warren E. Burger: Do you agree Mr. Morris that in both Section 5 (a) and in the other sections, the judgment is one that requires reading into the statute but it's based on reasonable medical certainty on what is then in it -- known about the subject.

Mr. Roland Morris: Yes, I do, sir, if what you're asking me is, is there an objective legal tests for the -- as opposed to the doctor's judgment being controlling.

The doctor's judgment can be questioned under the statute and that has never been questioned by the appellants of the lower court.

Justice Byron R. White: It's the same test, the same general standard as would apply to a live birth?

Mr. Roland Morris: Yes.

Justice William J. Brennan: Whatever standard of care the doctor has held to there is held to in -- under this statute?

Mr. Roland Morris: Yes sir, the def -- I agree --

Justice William J. Brennan: And is that -- is that standard, what is that standard, reasonable medical --?

Mr. Roland Morris: Reasonable medical certainty.

The difficulty, sir, is that with a live birth you have a situation where it can be determined.

We are now --

Justice Byron R. White: Mr. Morris, it's a -- but that's the standard?

Mr. Roland Morris: Yes sir.

Justice Byron R. White: However difficult it might be to apply it, if that's the standard.

Mr. Roland Morris: Yes and when subjecting a man I submit to the court to a situation which if he makes the wrong judgment invokes a criminal penalty.

Then I think the judgment must be made at least humanly possible and I submit in this case it isn't.

Finally, let me turn if I may from the area which is carved out of Roe and Danforth by the “may be viable” language and incidentally in Hodgson, the Eight Circuit so found on the words potentially viable the appeal was dismissed in that case.

And moved then to what I think you must do on a vagueness analysis and I will make this brief but I want to call to the court's attention that starting with Thornhill moving through Connolly and Winters and Keyishian now, you have clearly when an individual right was inhibited or circumscribed or threatened, held the statute or the state officer to a high standard of certainly.

It is not sufficient when threatening an individual right as you do here with respect to both doctor and the mother both of which rights we assert, to say as you might to a state officer your actions must be constitutional.

You may say that to a state.

Indeed under civil rights statutes you have convicted state officers for that.

But that I think you have been unwilling to say, and I ask you to remain continuingly unwilling to say, that you may make a private citizen operating in an area which maybe protected and which is private subject to the same standard.

And if this statute if any statute accomplishes precisely that goal, I think Roe suggested the conclusion.

I think Danforth and Hodgson make it clear.

Thank you, sirs.

Rebuttal of Carol Los Mansmann

Ms Carol Los Mansmann: There was a question that underlay a great deal of testimony in the lower court.

That was a fundamental question and that was, “What really is an abortion?”

Is it the termination of a woman's impending motherhood or is it that plus destruction of the fetus or a viable child?

And it is our position that with respect to the methods applicable, the appellees failed to show that there was not a safe method, but their arguments are all based on what plaintiff, Dr. John Franklin said and that is, that it's his belief and he said, “I've thought about this a great deal and it's my belief that the right to live is that somebody wants you to live.”

And if the mother doesn't want you to live then the physician should be able to perform an abortion.

And he meant at any time for the purpose not just of terminating the pregnancy but destroying the fetus as well.

And I leave you with that thought and ask you again to recognize the state's interests in the rights to the viable child.

Thank you.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.