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United States v. Vuitch (1971)

In Depth


Milan Vuitch, a physician, was charged in an indictment for producing and attempting to produce abortions in violation of the District of Columbia abortion statute. The federal district court dismissed the charges, holding that the statute was unconstitutionally vague. The United States appealed the dismissal directly to the United States Supreme Court.

The Statute Under Review

Whoever, by means of any instrument, medicine, drug or other means whatever, procures or produces, or attempts to procure or produce an abortion or miscarriage on any woman, unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years . . . .

D.C. Code Ann. § 22-201.

The Court's Decision

By a five-to-four vote, the Supreme Court held that it had jurisdiction to consider a direct appeal from a district court judgment dismissing an indictment on the ground that the statute upon which the indictment was based is invalid. By a differently constituted majority, the Court held upheld the constitutionality of the District of Columbia abortion statute.

The Court's Reasoning

Justice Black wrote the majority opinion for the Court. In Part I of its opinion, the Court concluded that it had jurisdiction of the direct appeal under the Criminal Appeals Act, 18 U.S.C. § 3731. Vuitch, 402 U.S. at 64-67. In Part II, the Court addressed the constitutionality of the statute. The district court had held that the statute was vague for two reasons: First, "once an abortion was proved a physician 'is presumed guilty and remains so unless a jury can be persuaded that his acts were necessary for the preservation of the woman's life or health.' " Id. at 68-69 (quoting district court opinion). Second, the undefined term "health" was "'ambivalent and uncertain . . . .' " Id. at 69 (quoting district court). The Court rejected both holdings.

With respect to the burden of proof issue, the Court commented that "a statute that outlawed only a limited category of abortions but 'presumed' guilt whenever the mere fact of abortion was established, would at the very least present serious constitutional problems under this Court's previous decisions interpreting the Fifth Amendment." Vuitch, 402 U.S. at 70 (citing cases). The Court, however, found it unnecessary to decide whether the abortion statute under review created such problems. The Court noted that "[i]t is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant does not come within the exception." Id. Turning to the statute before it, the Court stated that "[i]t would be highly anomalous for a legislature to authorize abortions necessary for life or health and then to demand that a doctor, upon pain of one to ten years' imprisonment, bear the burden of proving that an abortion he performed fell within that category." Id.

Placing such a burden of proof on a doctor would be peculiarly inconsistent with society's notions of the responsibilities of the medical profession. Generally, doctors are encouraged by society's expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. We are unable to believe that Congress intended that a physician be required to prove his innocence. We therefore hold that under D.C. Code Ann. § 22-201, the burden is on the prosecution to plead and prove that an abortion was not "necessary for the preservation of the mother's life or health."

Id. at 70-71.

With respect to the alleged vagueness in the undefined term "health" in the statute, the Court noted that the legislative history of the statute-amended in 1901 to include the health exception- "gives no guidance as to whether 'health' refers to both a patient's mental and physical state." Vuitch, 402 U.S. at 71. In 1970, however, a federal district court interpreted the statute to allow abortions "for mental health reasons whether or not the patient had a previous history of mental defects." Doe v. General Hospital of the District of Columbia, 313 F. Supp. 1170,1174-75 (D.C. 1970). The same construction was followed by the federal court of appeals in subsequent proceedings in the same case. Doe v. General Hospital of the District of Columbia, 434 F.2d 423 and 427 (D.C. Cir. 1970). The Supreme Court saw no reason not to follow this interpretation of the statute. Vuitch, 402 U.S. at 72. "Certainly, this construction accords with the general usage and modern understanding ofthe word 'health," which includes psychological as well as physical well-being." Id. The Court also cited the Webster's Dictionary definition of health "as the '[s]tate of being . . . sound in body [or] mind.'" Id. "Viewed in this light," the Court concluded, "the term 'health' presents no problem of vagueness. Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." Id. The Court held that "properly construed the District of Columbia abortion law is not unconstitutionally vague," and "the trial court erred in dismissing the indictment on that ground." Id.Accordingly, the judgment of the district court was reversed and the case was remanded for further proceedings not inconsistent with the Court's opinion. Id. at 73.

The Concurring And Dissenting Opinions

Justice White, who joined both parts of the Court's opinion, wrote a short concurring opinion in which he emphasized that the abortion statute "puts everyone on adequate notice that the health of the mother, whatever that phrase means, is the governing standard." Vuitch, 402 U.S. at 73(White, J., concurring). Accordingly, "a doctor is not free to perform an abortion on request without considering whether the patient's health requiresit. No one of average intelligence could believe that under this statute abortions not dictated by health considerations are legal." Id. Thus, even if the undefined "health" standard were unconstitutionally vague (which Justice White agreed was not the case), "the statute is not void on its face since it reaches a class of cases in which the meaning of 'health' is irrelevant and no possible vagueness issues could arise." Id. at 74.Because the district court declared the statute unconstitutional on its face, without regard to the particulars of the indictment under which Dr. Vuitch was charged, it was not possible to determine, at this stage of the proceedings, "whether this is one of those cases," id., i.e.,whether there were any "health" reasons for the abortions he performed.

Justice Douglas joined Part I of the Court's opinion (accepting jurisdiction), but dissented from Part II of the Court's opinion, in which the Court upheld the constitutionality of the statute. Without expressing any view regarding the substantive constitutionality of the statute, Justice Douglas stated that the statute was procedurally deficient because it did not provide fair warning of what conduct was prohibited thereby. Vuitch, 402U.S. at 75-81 (Douglas, J., dissenting in part). He posed a series of hypothetical questions regarding the scope of the statute:

May he [the physician] perform abortions on unmarried women who want to avoid the "stigma" of having an illegitimate child? Is bearing a "stigma" a "health" factor? Only in isolated cases? Or is it such whenever the woman is unmarried?

Is any unwanted pregnancy a "health" factor because it is a source of anxiety?

Is an abortion "necessary" in the statutory sense if the doctor thought that an additional child in a family would unduly tax the mother's physical wellbeing by reason of the additional work which would be forced upon her?

Would a doctor be violating the law if he performed an abortion because the added expense of another child in the family would drain its resources, leaving an anxious mother with an insufficient budget to buy nutritious food?

Is the fate of an unwanted child or the plight of the family into which it is born relevant to the factor of the mother's "health"?

Id.at 76.

Justice Douglas argued that when a statute implicates constitutional guarantees, it must be drafted with more precision than is the case with, for example, economic regulations. Vuitch, 402 U.S. at 77. A statute prohibiting abortion is such a statute because "[a]bortion touches intimate affairs of the family, of marriage, of sex,, which . . . involve rights associated with several express constitutional rights and which are summed up in 'the right of privacy.' " Id. at 78. Because of the "volatile" nature of the issue of abortion, it is essential that "the statutory code of conduct is stable" and "narrow[ly] bound," otherwise "juries have a wide range and physicians have no reliable guideposts." Id. at 80. In Justice Douglas' opinion, the words "necessary for the preservation of the mother's life or health" in the District of Columbia abortion statute are "free-wheeling concepts, too easily taking on meaning from the jury's predilections or religious prejudices." Id. Accordingly, he would have affirmed the dismissal of the indictments against Dr. Vuitch and "le[ft] to the experts the drafting of abortion laws that protect good faith medical practitioners from the treacheries of the present law." Id.

Justice Harlan joined Part II of the Court's opinion, upholding the constitutionality of the statute, but dissented from Part I, in which the Court held that it had jurisdiction over the government's appeal. Vuitch, 402 U.S. at 81-96 (Harlan, dissenting as to jurisdiction). Justices Brennan, Marshall and Blackmun joined his dissent on the jurisdictional issue. Id. at 81.

Justice Stewart dissented from Part II of the Court's opinion. In Justice Stewart's opinion, the abortion statute should have been construed to allow a physician to perform an abortion whenever, in his own unreviewable judgment, it was necessary to preserve the mother's life or health. Vuitch,402 U.S. at 96-97.

"[W]hen a physician has exercised his judgment in favor of performing an abortion, he has, by hypothesis, not violated the statute. . . . [T]he question of whether the performance of an abortion is "necessary for the . . . mother's life or health" is entrusted under the statute exclusively to those licensed to practice medicine, without the overhanging risk of incurring criminal liability at the hands of a second-guessing lay jury.

Id. at 97. Accordingly, Justice Stewart would have held that a licensed physician "is wholly immune from being charged with the commission of a criminal offense under this law." Id.

Justice Blackmun wrote a short separate opinion, in which he joined Justice Harlan's dissent on the jurisdictional issue and the Court's opinion with respect to constitutionality of the statute. Vuitch, 402 U.S. at 97-98 (Op. of Blackmun, J.).

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