US SUPREME COURT DECISIONS

Section 5(a) of the Pennsylvania Abortion Control 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 such person determines that the fetus "is viable," or "if there is sufficient reason to believe that the fetus may be viable," then he must exercise the same care to preserve the fetus' life and health as would be required in the case of a fetus intended to be born alive, and must use the abortion technique providing the best opportunity for the fetus to be aborted alive, so long as a different technique is not necessary to preserve the mother's life or health. The Act, in § 5(d), also imposes a penal sanction for a violation of § 5(a). Appellees brought suit claiming, inter alia, that § 5(a) is unconstitutionally vague, and a three-judge District Court upheld their claim.

Held:

1. The viability determination requirement of § 5(a) is void for vagueness. Pp. 439 U. S. 390-397.

(a) Though apparently the determination of whether the fetus "is viable" is to rest upon the basis of the attending physician's "experience, judgment or professional competence," it is ambiguous whether that subjective language applies to the second condition that activates the duty to the fetus, viz., "sufficient reason to believe that the fetus may be viable." Pp. 439 U. S. 391-392.

(b) The intended distinction between "is viable" and "may be viable" is elusive. Apparently those phrases refer to distinct conditions, one of which indeterminately differs from the definition of viability set forth in Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52. Pp. 439 U. S. 392-394.

(c) The vagueness of the viability determination requirement is compounded by the fact that § 5(d) subjects the physician to potential criminal liability without regard to fault. Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the Act is little more than "a trap for those who act in good faith," United States v. Ragen, 314 U. S. 513, 314 U. S. 524, and the perils of strict criminal liability are particularly chanrobles.com-red

Page 439 U. S. 380

acute here because of the uncertainty of the viability determination itself. Pp. 439 U. S. 390-397.

2. The standard of care provision is likewise impermissibly vague. It is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a "trade-off" between the patient's health and increased chances of fetal survival. Where conflicting duties of such magnitude are involved, there must be greater statutory precision before a physician may be subjected to possible criminal sanctions. Pp. 439 U. S. 397-401.

Affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C.J.,and REHNQUIST, J., joined, post, p. 439 U. S. 401.