United States v. Vuitch (1971)
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.
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
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
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."
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."
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.).