ANDERS, SOLICITOR OF RICHLAND COUNTY
v.
FLOYD
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A South Carolina prosecutor sought to proceed with criminal charges against a defendant for performing an abortion on a 25-week-old fetus, but a federal district court enjoined the prosecution based on Roe v. Wade. The Supreme Court vacated and remanded the case, finding that the district court may have misapplied the concept of "viability" as established in the concurrent decision Colautti v. Franklin, and suggesting the district court reconsider whether abstention was appropriate given pending state court proceedings.
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Per Curiam.
The motion of Legal Defense Fund for Unborn Children for leave to file a brief, as amicus curiae, is denied.
The motion of David Gaetano for leave to file a brief, as amicus curiae, is granted.
Appellee was indicted by a grand jury of Richland County, S. C., for criminal abortion and murder in connection with the abortion of a 25-week-old fetus. The District Court enjoined the prosecution, concluding that under Roe v. Wade, 410 U. S. 113 (1973), there was no possibility of obtaining a constitutionally binding conviction of appellee. 440 F. Supp. 535 (1977). Because the District Court may have reached this conclusion on the basis of an erroneous concept of “viability,” which refers to potential, rather than actual, survival of the fetus outside the womb, Colautti v. Franklin, 439 U. S. 379, 388-389 (1979), the judgment is vacated and the case is remanded to the United States District Court for the District of South Carolina for further consideration in light of Colautti.
In addition, it is suggested, in view of the alternative constructions of the South Carolina criminal statutes that are available, that the District Court give further consideration to the possibility of abstention, at least in part, in deference to the pendency of the state-court proceeding.
Vacated and remanded.
Mr. Justice Stewart dissents.
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Chris Simopoulos, M.D. v. Va. State Bd. OF Med., 644 F.2d 321 (4th Cir. 1981)…. at 338, 97 S.Ct. at 1218. . Laycock, 1977 Supreme Court Review, supra, at 198; see also, Note. 19 Boston College L.Rev., supra, at 734-35. . Aldisert, 11 Conn.L.Rev., supra, at 197. . 410 U.S. at 126, 93 S.Ct. at 713. See also, Anders v. Floyd, 440 U.S. 445, 99 S.Ct. 1200, 59 L.Ed.2d 442 (1979), reh. denied, 441 U.S. 928, 99 S.Ct. 2043, 60 L.Ed.2d 403. . That the two statutes (i. e., the abortion statute and the suspension statute) are related and are integrated parts of a common legislative scheme to…
Authorities Cited
- ROE v. Wade, 410 U.S. 113 (U.S. 1973)
- Colautti v. Franklin, 439 U.S. 379 (U.S. 1979)