440 U.S. 445
99 S.Ct. 1200
59 L.Ed.2d 442
James C. ANDERS, Solicitor of Richland County,
Jesse J. FLOYD.
March 5, 1979.
Rehearing Denied April 23, 1979.
See 441 U.S. 928, 99 S.Ct. 2043.
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, 98 S.Ct. 705, 35 L.Ed.2d 147, (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, 389, 99 S.Ct. 675, 682, 58 L.Ed.2d 596 (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 ofColautti.
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.