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Simopoulos v. Virginia (1983)

In Depth


A Virginia statute made it a crime for an abortion after the first trimester to be performed outside of a "licensed hospital," which was defined by law to include an "outpatient hospital."  The statute did not apply, however, if the procedure was necessary to save the woman's life.  Following a bench trial, defendant, a licensed physician, was convicted of violating the statute by performing an abortion upon a pregnant minor in his unlicensed clinic.  The Virginia Supreme Court affirmed defendant's conviction and defendant appealed to the Supreme Court.

In his appeal, defendant argued that the statute was unconstitutionally applied to him because "lack of medical necessity for the abortion was not alleged in the indictment, addressed in the prosecution's case or mentioned by the trier of fact," that he was not proved guilty beyond a reasonable doubt and that Virginia could not require second trimester abortions to be performed in a "licensed hospital."   Simopoulos, 462 U.S. at 510-11.

The Statute Under Review

The indictment charged defendant with a violation of § 18.2-71 of the Virginia Code which, at the time of the offense, provided as follows:

Except as provided in other sections of this article, if any person administer to, or cause to be taken by a woman, any drug or other thing, or use means, with intent to destroy such child, or to produce abortion or miscarriage, he shall be guilty of a Class 4 felony.

Va. Code § 18.2-71 (1982).  Virginia law set forth four exceptions to the scope of this statute: there was no criminal liability if the abortion (I) was performed within the first trimester, § 18.2-72; (ii) was performed in a licensed hospital in the second trimester, § 18.2-73; (iii) was performed during the third trimester under certain circumstances, § 18.2-74; or (iv) was necessary to save the woman's life, § 18.2-74.1.  In addition to the criminal penalty provided, a physician who was found guilty of violating § 18.2-71 was subject to a mandatory revocation of his license to practice medicine.  Va. Code §§ 54-316(3), 54-317(1), 54.321.2 (1982).

Section 18.2-71 itself did not define the term "hospital," but another statute defined "hospital" to include "outpatient . . . hospitals."  Va. Code § 32.1-123.1.  And an administrative regulation defined "outpatient hospitals" in part as "[i]nstitutions . . . which primarily provide facilities for the performance of surgical procedures on outpatients," and provided that second-trimester abortions could be performed in such clinics.  Dep't of Health Rules & Regulations for the Licensure of Outpatient Hospitals in Virginia, § 20.2.11.  The regulations applicable to the performance of second-trimester abortions in outpatient surgical hospitals largely followed the regulations applicable to all outpatient surgical hospitals in Virginia.

The Court's Holding

By a vote of eight-to-one, the Court upheld the defendant's conviction.

The Court's Reasoning

The Court quickly disposed of the defendants' first two arguments.  With respect to defendant's argument that the State failed to allege the lack of medical necessity in the indictment or to introduce evidence on that issue to the trier of fact, the Court noted that, under Virginia law, the prosecution was not required to prove lack of medical necessity beyond a reasonable doubt unless and until the defendant invoked medical necessity as a defense.  Simopoulos, 462 U.S. at 510.  Because the defendant never raised medical necessity as a defense, the State was under no obligation to present evidence rebutting that defense.  Under well-established Supreme Court precedent, it is normally permissible to "plac[e] upon the defendant the burden of going forward with evidence on an affirmative defense . . . ."  Id.  Accordingly, defendant's first argument was rejected.  With respect to his argument regarding the sufficiency of the evidence, the Court found that the evidence proved him guilty beyond a reasonable doubt.  Id.

The Court then proceeded to the principal issue on appeal, the constitutionality of the State's requirement that all second-trimester abortions be performed in a licensed outpatient hospital.

Writing for the majority, Justice Powell reiterated that "a State has an 'important and legitimate interest in the health of the mother' that becomes 'compelling' . . . at approximately the end of the first trimester.' " Simopoulos, 462 U.S. at 510-11 (quoting Roe v. Wade, 410 U.S. 113, 163 (1973)).  "This interest," he continued, "embraces the facilities and circumstances in which abortions are performed."  Id. at 511.  The defendant argued that Virginia's requirement that all second-trimester abortions be performed in outpatient hospitals "imposes an unconstitutional burden on the right of privacy." Id. (stating defendant's argument).  The Court recognized that, under two other cases decided the same day as Simopoulos, the State may not require all second-trimester abortions to be performed in an "acute-care hospital . . . ." Id. (citing City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431-39 (1983), and Planned Parenthood Ass'n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 481-82 (1983)).  The State of Virginia responded that its hospitalization requirement differs from those struck down in City of Akron and Ashcroft and that it reasonably promotes the State's interests. Id. After reviewing the applicable statutes and regulations, the Court agreed with the State.  "[T]he Virginia statutes and regulations do not require that second-trimester abortions be performed exclusively in full-service hospitals."  Id. at 516.  Under Virginia's hospitalization requirement, "outpatient surgical hospitals may qualify for licensing as 'hospitals' in which second trimester-abortions lawfully may be performed."  Id. City of Akron and Ashcroft were not controlling.

In light of its interest in protecting the health of its citizens, "the State necessarily has considerable discretion in determining the standards for the licensing of medical facilities."  Simopoulos, 462 U.S. at 516.  "Although its discretion does not permit it to adopt abortion regulations that depart from accepted medical practice, it does have a legitimate interest in regulating second-trimester abortions and setting forth the standards for facilities in which such abortions are performed." Id.  The Court observed that, on their face, "the Virginia regulations appear to be generally compatible with accepted medical standards governing outpatient second-trimester abortions."  Id. at 517 (citing standards promulgated by the American Public Health Association and the American College of Obstetricians & Gynecologists).  Moreover, given the language of the regulations and the history of their adoption, the Court had no reason to doubt that "an adequately equipped clinic could, upon proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions."  Id. at 518-19.

The Court did not need to consider whether Virginia's regulations were constitutional "in every respect," because the defendant never challenged them as being "insufficiently related to the State's interest in protecting health."  Simopoulos, 462 U.S. at 517.  Rather, his challenge appeared to have been limited to the claim  that "the State cannot require all second-trimester abortions to be performed in full-service general hospitals." Id. at 518.  Because Virginia imposed no such requirement on second-trimester abortions, defendant's argument was misdirected.  Unlike the provisions at issue in City of Akron and Ashcroft, "Virginia's statute and regulations do not require that the patient be hospitalized as an inpatient or that the abortion be performed in a full-service, acute-care hospital." Id.  "Rather, the State's requirement that second-trimester abortions be performed in licensed clinics appears to comport with accepted medical practice, and leaves the method and timing of the abortion precisely where they belong-with the physician and the patient."  Id.

The Concurring And Dissenting Opinions

Justice O'Connor wrote an opinion, in which Justice White and Justice Rehnquist joined, concurring in part and concurring in the judgment.   Justice O'Connor agreed that Virginia's second-trimester outpatient hospitalization requirement was constitutional, but, relying upon her dissent in the City of Akron case decided the same day, stated that the validity of that requirement was not in any way contingent "on the trimester in which it is imposed."  Simopoulos, 462 U.S. at 519-50 (O'Connor, J., concurring in part and concurring in the judgment).  Id. at 520.  The requirement was constitutional because it was not an "undue burden" on the woman's decision to under an abortion." Id.

Justice Stevens dissented on the basis that there was some question as to whether the challenged statute, properly interpreted, "prohibit[ed] all second-trimester abortions except those performed in a full-service, acute-care hospital facility," contrary to the holdings in City of Akron and Ashcroft, or "permit[ted] any abortion performed in a facility licensed as a 'hospital' in accord with any regulations . . . adopted by the Department of Health."  Simopoulos, 462 U.S. at 520-21 (Stevens, dissenting).  In Justice Stevens' view, the proper disposition of the case would have been to vacate the judgment of the Virginia Supreme Court and remand the case to that court to determine the proper interpretation of the statute and implementing regulations.  Id. at 521.

For an analysis of the constitutional issues decided in City of Akron and Ashcroft, please see the fact sheets for those cases.

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