Simopoulos v. Virginia

PETITIONER:Chris Simopoulos
RESPONDENT:Virginia
LOCATION:Dr. Simopoulos’ Clinic

DOCKET NO.: 81-185
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Virginia

CITATION: 462 US 506 (1983)
ARGUED: Nov 30, 1982
DECIDED: Jun 15, 1983

ADVOCATES:
Roy Lucas – on behalf of the Appellant
William G. Broaddus – on behalf of the Appellee

Facts of the case

Dr. Chris Simopoulos, a practicing obstetrician-gynecologist, performed an abortion for a 17-year-old girl at his clinic in Falls Church, Virginia. The girl was in her second trimester and did not inform her parents about the procedure, despite Dr. Simopoulos’ suggestion. Dr. Simploulous was indicted under a Virginia law prohibiting second trimester abortions outside of a licensed hospital. The Circuit Court of Fairfax County convicted him without a jury and the Supreme Court of Virginia affirmed the conviction.

Question

(1) Does the prosecution’s failure to allege a lack of medical necessity for the abortion violate Due Process?

(2) Did the prosecution fail to prove that Dr. Simploulous’ acts caused the death of the unborn fetus?

(3) Is the Virginia law requiring all second trimester abortions to take place in licensed hospitals unconstitutional?

Warren E. Burger:

We will hear arguments first this morning in 81-185, Simopoulos against Virginia.

Mr. Lucas, you may proceed whenever you are ready.

Roy Lucas:

Mr. Chief Justice, and may it please the Court, this appeal from the Supreme Court of Virginia dates back three years and one day ago, when a team of Falls Church police arrived at the American Women’s Clinic in that city.

Dr. Simopoulos, a gynecologist, was inside with his staff and numerous patients.

He practices there as well as in a Woodbridge office and at four hospitals in Northern Virginia where he has staff privileges as a board certified obstetrician/gynecologist.

The police seized the clinic, secured it.

They arrested Dr. Simopoulos, searched the premises, photographed the area, including the operating room, the laboratory, and the various pieces of equipment that he had there.

They in particular had a search warrant and seized the medical records of one young woman who has gone by initials during the course of this case, and I will continue to do so.

They also seized the sign-in sheet that had the names of all of the patients who were there on that particular day.

Dr. Simopoulos was–

Warren E. Burger:

Why are these factors relevant to the basic issue presented?

Roy Lucas:

–These are basic background facts, Your Honor.

That is all.

I was getting to the charge now.

Warren E. Burger:

I fail to see what they have to do with the case.

Roy Lucas:

They are just background about the fact that he was then arrested, he was then charged under the particular Virginia statute, the Virginia Code 18.2-71.

The statute defines as a felony any abortion “except as provided” in the other sections that are within the particular article.

The statute is in its language remarkably like the statutes from 1848, the first statute up through 1970, except the earlier statutes were included in one paragraph, whereas… and this was significant to the Virginia Supreme Court… the current statute is in several different statutory sections.

The indictment, which is set out in the jurisdictional statement, Pages 3 through 4, charged only the violation of the one statute, the 71 statute, which on its face declares all abortions illegal except as provided in the other statutory sections.

The indictment did negate two of the separate sections, the section pertaining to the length of pregnancy and that the indictment alleged, and it was not contested, that pregnancy was in the second trimester.

The indictment also negated the question of whether the abortion had been performed in a hospital or somewhere else.

The indictment did not negate, however, the 74-1 section on medical necessity.

The prosecution theory, as expressed in the indictment and in the various arguments, particularly the closing argument at 449 of the Joint Appendix, was that the Commonwealth had only to prove some act by the doctor with intent to cause an abortion, and that that constituted the sufficiency of the crime.

According to the prosecution theory, the crime was essentially complete when P.M. left Dr. Simopoulos’s American Women’s Clinic, provided that she later somewhere aborted, and provided that the prosecution was able to connect up the saline installation procedure with either the demise of the fetus or the abortion of the fetus.

There was a bench trial in this case rather than a jury trial, at which numerous arguments were made, of which three have remained in our presentation to the Court here.

In pretrial hearings that lasted about a day and a half, the defendant put on evidence to challenge the constitutionality of the statute and to challenge the arguments to challenge the defects in the indictment and the definition of the offense.

We called various expert witnesses to deal with the question of whether there was any health or other basis for the statute.

We had three gynecologists from Northern Virginia experienced with second trimester abortions, as well as one particular gynecologist who had conducted an extensive study on out-patient saline abortions.

Lewis F. Powell, Jr.:

Mr. Lucas–

Roy Lucas:

Yes, Mr. Justice.

Lewis F. Powell, Jr.:

–it would help me if you would describe the type of clinic, tell me whether it is licensed under Virginia law as an out-patient hospital.

Roy Lucas:

Your Honor, the clinic does not have a license as an out-patient hospital.

We submitted in our reply brief… the Commonwealth raised for the first time in this Court the question of whether the out-patient hospital requirements would apply.

There are two types of out-patient hospital licenses in the state, and–

Lewis F. Powell, Jr.:

Was the clinic licensed under the laws of Virginia?

Roy Lucas:

–It was not licensed under the laws of Virginia.

Dr. Simopoulos sent a letter inquiring about licensure on February the 13th, 1980, which appears as an appendix to our reply brief.

Lewis F. Powell, Jr.:

Well, that was after all these events had occurred, though, was it not?

Roy Lucas:

That’s correct.

William J. Brennan, Jr.:

But he never applied before?

Roy Lucas:

He never applied.

He was advised in the response from the Commonwealth that his office could not become licensed as–

William J. Brennan, Jr.:

Well, yes, again but this was after the events that led to his indictment.

Roy Lucas:

–That’s correct.

I presume the interpretation would have been the same.

William J. Brennan, Jr.:

But getting to my brother Powell’s question to you, could he have applied for certification as an out-patient surgical hospital?

Roy Lucas:

I would think that the interpretation the Attorney General offered in denying him later would have applied earlier.

The fact of the prosecution–

William J. Brennan, Jr.:

That wasn’t my question.

Could he have applied?

Roy Lucas:

–He could have theoretically–

William J. Brennan, Jr.:

To whom?

Roy Lucas:

–He could have applied to the State Department of Health, the same people that license hospitals in general.

The Attorney General told him he had to build a hospital, however.

William J. Brennan, Jr.:

Has anyone tried to get certification as an out-patient surgical hospital?

Roy Lucas:

As first… There are some out-patient abortion hospitals in the Commonwealth that are licensed to do first trimesters.

It is very unclear, and certainly–

William J. Brennan, Jr.:

Well, he did… Dr. Simopoulos also did first trimester abortions, did he not?

Roy Lucas:

–That’s correct.

William J. Brennan, Jr.:

But he never sought first certification?

Roy Lucas:

He did not attempt to apply for that, and the state has never required him to.

The state has treated him as a physician’s office where first trimester abortions might definitely be performed without question under Virginia law.

The state has never taken the position in any way that he was required to–

William J. Brennan, Jr.:

Well, what I am really getting to, are there… of the… I gather there are several clinics rather than hospitals, abortion clinics, are there not, in Virginia?

Roy Lucas:

–The record is quite silent on that, but I am certain there are.

William J. Brennan, Jr.:

All right.

And the record doesn’t tell us how many, if any, of them have obtained certification?

Roy Lucas:

There is no evidence that a facility performing second trimester abortions could even obtain certification.

There is no evidence in the record whatsoever of that.

The analysis of the different out-patient licensing regulations might even suggest that they are not applicable.

The Virginia Supreme Court at one point in its opinion interpreted the abortion law to require abortions at every stage to be inside the hospital.

That would seem to exclude any out-patient facility, because the out-patient facility by definition sends the patients home at the end of the surgical procedure in the afternoon.

Lewis F. Powell, Jr.:

The out-patient surgical hospitals are described as hospitals under the Virginia regulations.

Roy Lucas:

They are indeed, but they are prescribed as hospitals that are for day type surgery, where the patients do not stay overnight, and–

Lewis F. Powell, Jr.:

But only for… second trimester abortions are different from the first trimester abortions that can be performed in a different type surgical hospital.

Roy Lucas:

–I don’t believe I understood your question.

I think–

Lewis F. Powell, Jr.:

Well, there is a category under the Virginia regulations of out-patient surgical hospitals, and I assumed that they were the places that under Virginia law second trimester abortions normally would be performed.

Roy Lucas:

–There is absolutely nothing in the record or any of the health department reports or anything to support that.

I have no knowledge or basis in the record to think that a second trimester abortion has ever been performed in an out-patient surgical hospital, and that is something that was never even mentioned until this level.

The Virginia Supreme Court had no opportunity to interpret it, to even determine whether the out-patient surgical hospital question… I would anticipate that if we ever had an opportunity to respond to that issue raised at this point by the Virginia Attorney General, that we would be able to show that there are very few facilities licensed as out-patient surgical hospitals.

We would show that according to the Attorney General, they would not let Dr. Simopoulos obtain the type of license for second trimester abortions he had requested, because the Assistant Attorney General in the letter in the reply brief told him he would have to build a hospital.

And I would submit to the Court that as far as this record shows, the only places where second trimester abortions are done, certainly in Northern Virginia, are in the two hospitals, the Fairfax Hospital and the Alexandria Hospital.

That is out of well over 20 hospitals in the Northern Virginia area.

There are 95 in the state.

Which shows the sharp restrictive impact, certainly, of the statute.

And the–

John Paul Stevens:

May I ask you, Mr. Lucas, one other question on the Virginia regulations, just to be sure I understand it correctly?

Part 3 deals with “hospitals” that are abortion clinics in which only first trimester abortions may be performed.

Am I correct in understanding that your client did not even have that kind of license?

Roy Lucas:

–That is correct.

He was never required to apply for one.

I would presume that applies to non-physician owned type facilities.

This was a physician’s office that happened to be extremely well equipped.

The Commonwealth never required him to apply for it, and since it would be a misdemeanor for him not to if it was required, presumably he was operating a perfectly lawful place.

The evidence certainly in the record about Dr. Simopoulos’s clinic would show that he had all of the facilities that would have met the requirements of the first trimester abortion clinic if there had been any reason for him to apply for it.

Certainly the testimony of the expert witnesses, I believe three of them actually went and viewed his clinic before they testified in order to be able to compare the type of facility that he had with the type of facility that they utilized at the Fairfax Hospital, and each of them testified that he had far more extensive equipment.

He had the highest qualifications one could have, not only the training in GYN but the training in emergency medicine that he had, and he had the extra equipment that would be necessary that he preferred to have, equipment which was not at all present in the hospital context.

The requirement that abortions be done within the hospital stops at that point, and as the record in this case shows, the hospital simply used a standard treatment room with no special equipment in it whatsoever.

One of the documents submitted by the Commonwealth in their submissions, in the Virginia addendum at Page 80, is the American College of OB/GYN Technical Bulletin from 1976, which points out that saline installation abortions can safely be done in a standard treatment room, and I would submit that shows to us that the facility that he had was far… in far better condition.

It also points out the low mortality rate from the saline installation procedure, and that it could even be cut in half using the various advanced techniques which there was testimony that Dr. Simopoulos was utilizing.

And that goes strongly in favor of cutting against any health interests which the state has offered, and the state has only made that contention pertaining to the health interest.

The Commonwealth at the pretrial hearing submitted no evidence whatsoever.

They did not call a single expert witness in support of what burden they would have to show a health interest of the state.

They didn’t call anyone.

They didn’t call any witness of any kind.

And they simply did not make any attempt, and the Virginia Supreme Court in its opinion ruled what I believe is a clearly erroneous standard of review under the decisions from this Court that the burden entirely of showing the statute to be unconstitutional was on the defendant, on the physician.

The decisions of this Court have certainly indicated that, from Roe v. Wade onward, that the Commonwealth would have some burden of showing a maternal health interest, showing a compelling interest, showing that their regulations were narrowly tailored, that they were reasonably related to maternal health, and the Commonwealth in this case made no attempt whatsoever to meet that burden.

Byron R. White:

Do you get any guidance from the cases in this Court about the constitutionality of requiring second trimester abortions to be performed in a hospital?

Roy Lucas:

There have been mentions from time to time in the Court’s opinion from Roe and onward.

Most of the mentions I have seen in the opinions have indicated in the second trimester regulations reasonably related to maternal health may be valid.

Roe used that terminology.

Roe indicated there were various types of reasonably related health regulations which the state might attempt to apply.

Byron R. White:

And one of them was what, a hospital requirement?

Roy Lucas:

Roe did refer to the possibility of a hospital requirement.

Roe did not squarely indicate that the hospital requirement would be considered valid.

At the time, as pointed out in the American Medical Association brief, there was very little evidence about the safety of second trimester hospital procedures.

Abortion had been illegal in this country.

There was no record, no evidence in that case.

And the issue was certainly never addressed by anyone, and it was considered to be, I would think, a guideline from the Court as one of the possible types of regulations, as opposed to a definitive holding, since the second trimester hospital requirement was not at issue.

Roy Lucas:

Subsequently, in the Danforth case and the Colautti case, this Court has certainly carefully scrutinized the basis of restrictions and prohibitions in the second trimester abortion area.

In the Danforth case, where the Court had the question of an attempt by the state of Missouri to outlaw saline abortions, the Court carefully examined the basis for that attempted prohibition, and pointed out on the evidence in that case, as later in Colautti, that the saline installation technique was one of the primary techniques, if not the primary technique for that 15 percent or so of patients who find themselves in the second trimester, and that Danforth specifically pointed out that on that record at that time, the saline installation procedure had a lower mortality rate than that of childbirth, which was one of the important factors considered in the Danforth case.

Now, that was on a 1974 record.

There have been eight years of medical technology developments since that time, which would only enhance the position of the defendant in challenging the absence of any maternal health basis for the statute at present.

We argued in our first primary point with one of the criminal procedure questions, since the underlying statute need not be reached if the Point One or Point Two is persuasive to the Court.

The statute under which the doctor was charged criminalizes all abortions as construed by the Supreme Court of Virginia.

It would allow the indictment of any physician for performing any abortion.

The physician would then at least have to evoke and perhaps come forward with more in the way of proof that the abortion was justified under that particular subsequent statute.

This approach to the case, the Virginia Supreme Court did to avoid the other problems of United States v. Vuitch.

The United States v. Vuitch statute is so similar to the Virginia statute in many ways, except it is all incorporated into one paragraph.

The Virginia Supreme Court construed its statute as being different statutory sections, and therefore reaching a different result.

As it was construed, however, the Virginia Supreme Court then ran immediately into questions that did not deal with the question of are you violating the constitutional rights of a physician and a patient when you allow a physician to be indicted under a statute simply for performing an abortion.

If it is a first trimester abortion, it falls right in the language of that–

William H. Rehnquist:

Why can your client complain about that aspect of the statute since I understand he was involved with a second trimester abortion?

Roy Lucas:

–Well, he is primarily complaining about the second trimester.

I am just illustrating how the statute is construed.

The statute as construed would outlaw all second trimester abortions also.

William H. Rehnquist:

Yes, but outside the field of free speech and so forth, haven’t we adopted the position in that kind of a challenge that you can challenge the parts of the statute that apply to your conduct, but not parts of the statute that apply to other people’s conduct?

Roy Lucas:

We cited cases in our reply brief, such as Eisenstadt v. Baird, Broderick v. Oklahoma, which have applied the standing concept in a broader way when the right of privacy is concerned, and the Court has certainly–

William H. Rehnquist:

You think Broderick versus Oklahoma supports your position?

Roy Lucas:

–On the standing question, yes.

William H. Rehnquist:

On the merits, do you think it supports it?

Roy Lucas:

And on the merits, it is a First Amendment case, so I don’t think it would be applicable.

We didn’t examine it on the merits, but it does rely on Eisenstadt v. Baird, which was a criminal prosecution under the anti-contraceptive law, in which the Court gave broad standing to Mr. Baird to raise and assert the rights, and here you’ve got a situation of physicians treating patients at all kinds of different stages of pregnancy.

In this particular situation, you’ve got… you’ll have physicians treating patients at 13 weeks, 15 weeks, 17 weeks, 19 weeks, treating patients by three or four different types of second trimester procedures, and the concepts of standing the Court has enunciated would certainly support the view that the physician should have standing to raise the interests of his entire range of second trimester practice and the entire range of patients, that he should not be confined to 22.0 weeks, and then there be another case in this Court three years later on 23.0 weeks or 19.0 weeks.

We have attempted to deal with that extensively in our brief.

Both the majority and the dissenting opinions in Singleton v. Wulff discuss standing questions involving access to abortion in a way which we have discussed in our brief and we believe is strongly supportive of allowing the doctor full standing to challenge the statute in its full scope.

The trial court did not make any findings whatsoever or address the question of this burden of production in the medical necessity question, and we would suggest to the Court that cases such as Sandstrom and Patterson v. New York would apply in a way which is helpful to the defendant in that when one looks at the facts of what actually happened in this case in the transcript, it is crystal clear that the prosecution made no attempt to disprove medical necessity.

It is crystal clear that the trial court never made any instruction to itself or to discuss with counsel or… in any way as to where that burden would lie.

The trial court completely disregarded the medical necessity question.

Roy Lucas:

It is clear that under those circumstances, in a case such as Sandstrom and the other cases we have cited, that medical necessity would be not only a statutory defense, it would be a constitutional defense, and that if medical necessity–

William H. Rehnquist:

If it is a statutory defense, I presume that the trial court is thought to have considered it, and that the Supreme Court of Virginia would have considered it, if it thought it was a statutory defense.

Roy Lucas:

–Well, the trial–

William H. Rehnquist:

So aren’t you basically just asking us to reweigh evidence that has been already addressed by two other courts?

Roy Lucas:

–Not at all.

There is no indication that the trial court… the trial court did anything other than put the full burden of persuasion on the physician on medical necessity.

William H. Rehnquist:

How about the Supreme Court of Virginia?

Roy Lucas:

The Supreme Court of Virginia said that the burden of persuasion was on the prosecution, but that is simply not what happened at the trial.

William H. Rehnquist:

Well, but we take the basic factual issues pretty much as we get them from lower courts, and unless you are asking us to simply reweigh facts, or reweigh the burden of proof or the weight of the evidence.

Roy Lucas:

In the cases such as Sandstrom, the Court has looked at the transcript to see what happened, and the Virginia Supreme Court–

William H. Rehnquist:

Well, that was an instruction to a jury in a jury… in a case tried by a jury.

Roy Lucas:

–Well, Jackson v. Virginia indicates that in a bench trial the same standards would apply, that you would… that the trial judge in a bench trial is presumed to instruct himself or herself.

William H. Rehnquist:

Yes, and that is why I was asking, are you asking us to reweigh the evidence in the case under a kind of a Jackson versus Virginia theory?

Roy Lucas:

That is certainly part of our argument.

Under Jackson–

William H. Rehnquist:

Do you cite Jackson against Virginia in your brief?

Roy Lucas:

–Extensively, yes, and we cited Sandstrom also, and Patterson also, and we attempted to show that in this case, that because the burden of production on that question involves a constitutional defense, that in that limited area, which would apply in this case, in that limited area, that the burden of production and persuasion should be entirely on the Commonwealth.

Otherwise, the Commonwealth can come in and indict people for constitutionally protected conduct in this area, in the First Amendment area, or any other area, and that that is one of the biggest problems with the criminal procedure issues in the case, is that this is not a collateral issue like… as in Patterson, the emotional disturbance question.

This is something very central.

If the abortion was necessary for the patient’s life or health, then the abortion was constitutionally protected, and the Commonwealth would have the obligation to allege that in the indictment and to come forward with proof on that particular question.

Byron R. White:

Suppose… suppose it was not necessary for the state to allege it in the indictment.

Roy Lucas:

Then the state would, under U.S. v. Vuitch, we would suggest that it is, but if the… under the interpretation that the Commonwealth… the Virginia Supreme Court offered–

Byron R. White:

Do you think it would be unconstitutional to require that the defendant in such case plead medical necessity?

Roy Lucas:

–I think that would be a close question, since it is constitutionally protected conduct.

Byron R. White:

What did the Virginia Supreme Court hold in this case?

Roy Lucas:

They squarely held that it was not unconstitutional to require him to invoke the question.

That is all he had to do–

Byron R. White:

And they also held that he didn’t, didn’t they?

Roy Lucas:

–No, they didn’t.

They addressed the question pretty thoroughly.

Roy Lucas:

The Commonwealth has argued that he did not invoke it, but he invoked it very clearly and it is raised in the Joint Appendix, 194 through 197.

Byron R. White:

No, but does he just have to say, I invoke the defense?

Is that all he has to do?

Or does he have to give some credible basis for it?

Roy Lucas:

There is no procedure under the Virginia criminal procedure for invoking a particular defense of this nature.

There is for insanity and alibi and things of that nature, but there is no special procedure.

The invocation in this case was done by counsel’s argument concerning U.S. v. Vuitch and the argument that the Commonwealth had the burden of proving all of the elements of the crime, and that appears at 194 through 197 of the Joint Appendix.

Byron R. White:

You don’t think that in order to invoke the defense, there has to be testimony at the trial supporting the defense at all?

Roy Lucas:

That would occur in the case of the defendant’s case.

And we contended at the motion to strike, at the pages that I cited, that the Commonwealth had the obligation of putting on some of the evidence to refute that constitutional defense.

Byron R. White:

On its side of the case.

Roy Lucas:

Pardon me?

Byron R. White:

On its side of the case.

Roy Lucas:

Yes.

By all means.

That the Commonwealth would have to prove that the conduct was not constitutionally protected.

Byron R. White:

Before… How does the state know what defense the defendant is going to offer?

Roy Lucas:

The arguments based on U.S. v. Vuitch, I think, clearly alerted the Commonwealth to the medical necessity question.

We made no attempt to hide the question.

We raised U.S. v. Vuitch.

That is all about medical necessity, and–

Byron R. White:

Do you think that is all the raising that has to go on?

Roy Lucas:

–I would think so, yes.

If the Commonwealth didn’t understand at that point, then I would think we have no role, we can’t call witnesses during the Commonwealth’s case.

William J. Brennan, Jr.:

May I be clear about this, Mr. Lucas?

You never have taken the position, have you, that the absence of medical necessity was an element of the offense for the state to prove?

Roy Lucas:

I believe we have taken that position throughout.

William J. Brennan, Jr.:

You have?

But you are not taking that here today?

Roy Lucas:

Oh, yes, I am.

William J. Brennan, Jr.:

Well, I don’t understand.

Are you taking the position that medical necessity is a matter of defense which then shifts the burden of going forward to the state, or are you taking the position that as part of the state’s case it had to prove no medical necessity?

Roy Lucas:

The latter.

William J. Brennan, Jr.:

The latter?

Roy Lucas:

Yes, Your Honor.

Byron R. White:

Suppose you are wrong on that.

Roy Lucas:

Then there are other approaches to it.

If the burden is then on the… it depends on the question then of burden of production.

Is the burden of production entirely on the defendant?

In this particular case, we would contend that when you get to cases such as Sandstrom–

Byron R. White:

Do you think the Virginia Supreme Court approached… construed the statute to indicate that the absence of medical necessity was an element of the crime?

Roy Lucas:

–No, they did not.

They construed the statute so that there was only one element of a crime, namely, an abortion being done, that everything else was something that had to be invoked by the defendant.

Byron R. White:

Well, aren’t we… must we not accept that construction of the Virginia statute, and then the question is, is it constitutional as so construed?

Roy Lucas:

Yes, accepting that construction of the Virginia statute then takes you immediately into the Roe v. Wade question of whether they can indict people for every abortion in the Commonwealth, and that is the central thrust of our first argument.

Byron R. White:

I know, but suppose, though, it is recognized that medical necessity is a defense, it is not an element of the crime, but it is a defense, which… the Virginia Supreme Court seemed to recognize it as a defense.

Roy Lucas:

They treated it as a defense, yes.

Byron R. White:

Yes.

And is it constitutional to treat it as a defense?

Roy Lucas:

I would think not.

Byron R. White:

Well, you say it is not.

Roy Lucas:

We have argued strenuously that it is not.

Byron R. White:

I know.

I know, but that is where we are in this case, isn’t it, on this issue, is whether or not treating it as a defense, but with… and requiring the defendant to come forward with some evidence about it, is constitutional?

Roy Lucas:

That is certainly where we are, yes.

Thurgood Marshall:

Mr. Lucas, self-defense to a murder, is the government obliged to reach that in its case?

Roy Lucas:

Well, this Court I don’t believe has decided that, but addressed it in the–

Thurgood Marshall:

Do you know of any other case like that?

Roy Lucas:

–Not in this Court, sir.

There is a split of circuits, I think, on the question.

Roy Lucas:

The Court talked about that in Engle v. Isaac.

Thurgood Marshall:

And you have that the government in the self-defense case has to put on evidence to rebut the self-defense point in the case in chief.

Roy Lucas:

Representing a defendant, I would argue that the government does have that obligation.

Thurgood Marshall:

Do you have anything to back you up other than you?

Roy Lucas:

Only the decisions at a lower level than this Court, and the discussion that that is at least a substantial–

Thurgood Marshall:

Any in Virginia?

Roy Lucas:

–In Virginia, Virginia goes the other way.

Virginia squarely went the other way.

I will save the rest of my time for rebuttal.

Thank you, Your Honors.

Warren E. Burger:

Very well.

Mr. Broaddus.

William G. Broaddus:

Mr. Chief Justice, and may it please the Court, Virginia respectfully submits that this Court may, and indeed that this Court should affirm the judgment of the Supreme Court of Virginia based upon the law and the facts of this case.

Only by substantially enlarging the Roe v. Wade right and restricting the state’s legitimate interest may the Court have a basis for reaching a contrary result.

Because the Virginia statute under attack in this case is drawn directly from the description in Roe of legitimate and permissible state regulation, we respectfully urge affirmance.

As Mr. Justice Rehnquist has indicated, there are some difficulties with respect to standing in this matter, and we respectfully urge the Court to focus only on those factual situations in which Dr. Simopoulos has a personal interest at stake, and not to permit him to assert hypothetical bases for invalidating or alleging the invalidity of Virginia statutes.

I believe that that is certainly consistent with this Court’s opinions in Harris v. McPae and in the general line of cases.

Eisenstadt v. Baird would, we believe, not be on point in this particular situation, because that case involved a situation in which the defendant in a criminal trial was permitted to assert the rights of distributees of contraceptives.

Those persons who were receiving the product were not subject to criminal prosecution, and would not have a forum to assert their rights.

So, that took that particular situation out of the general standing proposition.

Turning to the major issue in this case, Virginia law imposes with respect to second trimester abortions only three conditions: first, that it be performed after the patient has given her informed written consent; second, that it be performed by a physician; and third, that it be performed in a hospital.

Clearly, this scheme is not–

Sandra Day O’Connor:

Mr. Broaddus–

William G. Broaddus:

–Yes, ma’am.

Sandra Day O’Connor:

–could the clinic have been licensed as a hospital?

William G. Broaddus:

We factually do not know whether Dr. Simopoulos’s clinic could have been so licensed.

Sandra Day O’Connor:

Have other clinics been licensed–

William G. Broaddus:

Yes, ma’am, they certainly have.

There are four, in the most recent compilation that I am aware of, in which out-patient surgical hospitals have been licensed by the Commonwealth to perform surgical procedures in accordance with–

William J. Brennan, Jr.:

–Can you briefly state, Mr. Broaddus, what the procedure is for doing that?

William G. Broaddus:

–Mr. Justice Brennan, that is set forth in the Commonwealth’s addendum.

It involves filing an application which satisfies the requirements in that… that are specified by the State Board of Health.

Among other things, there has to be certain equipment present within the facility.

The doctor has to in writing define certain procedures which he will follow when he performs surgical operations.

There have to be certain arrangements for transporting the patient to a general acute care hospital in the event of complications which cannot be handled there in the hospital.

There have to be certain arrangements for anesthesiologists, certain arrangements for infection control, and things of this nature.

William J. Brennan, Jr.:

And if Dr. Simopoulos had done all those things, he might have made an application to what agency?

William G. Broaddus:

To the State Board of Health, sir.

William J. Brennan, Jr.:

And it might have granted him such a certificate?

William G. Broaddus:

Certainly, sir.

William J. Brennan, Jr.:

For this very clinic?

William G. Broaddus:

Yes, sir.

William J. Brennan, Jr.:

And for second trimester?

William G. Broaddus:

Yes, sir.

Now, with respect to the letter, as you observed, that letter was written after the facts, but I think it is also important to note that it was written in response to an inquiry about a certificate of need, which is an entirely different procedure from certification as an out-patient hospital, and also it was based upon the assumption, stated in that letter, that Dr. Simopoulos was simply operating a doctor’s office, not a general surgical facility.

Now, six weeks after that letter was written, at trial, Dr. Simopoulos was asked the question as to whether he had applied for an out-patient hospital license, and at the time of the events, he had not, but he said at trial that he was then in the process of applying.

So certainly he knew at that time that it was possible.

The Virginia Supreme Court in its opinion did not focus specifically on out-patient hospital facilities, but it did refer to the broad licensing provisions in Title 32.1 of our code, and–

John Paul Stevens:

Mr. Broaddus, may I interrupt–

William G. Broaddus:

–Certainly.

John Paul Stevens:

–just to be sure you completed your answer to Justice O’Connor?

You said there were four facilities that had been licensed as clinics.

Is that pursuant to Part 2 of the regulations that relate not to the abortion clinics but to out-patient clinics?

William G. Broaddus:

That’s correct, sir.

John Paul Stevens:

And are they licensed… and you say… those four facilities are licensed to perform second trimester abortions?

William G. Broaddus:

The Part 2 does not limit the type of surgical procedure which could be provided within that facility.

There are four which are licensed as Part 2 facilities.

John Paul Stevens:

May they lawfully perform second trimester abortions?

William G. Broaddus:

Yes, sir.

Indeed, the regulations under Part 2 in at least four places specifically refer to the provision of abortion services without limitation within those Part 2 facilities.

John Paul Stevens:

I see.

William G. Broaddus:

Now, they are also–

Harry A. Blackmun:

But without limitation as to trimester?

I want to get that down very, very securely.

William G. Broaddus:

–That is correct, sir.

Without limitation as to trimester.

Harry A. Blackmun:

You are making that representation?

William G. Broaddus:

Yes, sir.

Lewis F. Powell, Jr.:

Mr. Attorney General, when you said that one of the requirements was that these second trimester abortions be performed in hospitals, I take it from what you have subsequently said that you are talking about the out-patient surgical type hospitals described in Part 2 of the regulations?

William G. Broaddus:

The Virginia abortion statute does not define hospital.

As you noted earlier in a question, that is defined elsewhere, and it includes out-patient surgical facilities.

So, the abortion requirement which requires hospitalization would be satisfied by performing the abortion in a general hospital, an acute care hospital, or in an out-patient surgical facility, which is also a hospital by definition under the code.

William J. Brennan, Jr.:

But as long as it… it has to be licensed.

Is that–

William G. Broaddus:

Yes, sir, licensed by the Commonwealth, meeting those regulations prescribed by the Commonwealth.

John Paul Stevens:

–It would seem to me that if you read the statute literally, it even would not have been violated if he had had a license under Part 3 of the regulations, because it is still a hospital, but it is not presented by this case.

William G. Broaddus:

Except, sir, that in Part 3 of the regulations, by virtue of the regulations themselves, the surgical procedure there is limited–

John Paul Stevens:

It might have violated those regulations.

William G. Broaddus:

–Yes, sir.

John Paul Stevens:

But I am not sure he would have violated the statute under which–

William G. Broaddus:

Quite possibly you are correct, sir.

Sandra Day O’Connor:

–Mr. Broaddus, have the Virginia courts interpreted the licensing statute in other cases, to your knowledge?

William G. Broaddus:

I am not aware of any decisions which do that, Justice O’Connor.

Not to my knowledge.

Now, in Roe v. Wade, this Court noted the statistics fully support the conclusion that the state’s interest becomes compelling at the end of the first trimester.

That is, its interest in protecting maternal health.

We respectfully submit that for three reasons the state’s interest today is just as compelling as it was in Roe v. Wade.

First, the mortality rates for abortion in second trimester is certainly at least equal to, if not greater than mortality rates for natural childbirth.

Harry A. Blackmun:

You make that as a flat statement now.

There is disagreement, is there not?

William G. Broaddus:

Based upon the Table 2 in Dr. Simopoulos’s addendum and Table 20 in our addendum, I believe that an analysis of all of the abortions and natural childbirths over the same span of years would yield that result, that it is at least equal to, if not greater than.

Harry A. Blackmun:

Well, as I read the briefs, there certainly is disagreement on that proposition.

William G. Broaddus:

When one includes all abortions performed in the first trimester, then certainly the mortality rate will be lower, because that is 90 percent of all the abortions, and the mortality rate there is only one.

As one goes into the second trimester, there are certain procedures which may have lower mortality rates than natural childbirth, but considering all of the second trimester procedures together, the rate is at least equal to, if not greater than.

Byron R. White:

When was this statute passed?

William G. Broaddus:

In 1975, sir.

Byron R. White:

And has it been amended since, or not?

William G. Broaddus:

No, sir.

Byron R. White:

And had it been proposed before?

William G. Broaddus:

It was… the revision which is present law was proposed in 1974, when the General Assembly convened following this Court’s decision in Roe v. Wade.

It was not adopted at that time.

Byron R. White:

Does Virginia have any sort of legislative history behind statutes?

Are there committee reports, or hearings that there is any record of?

William G. Broaddus:

In this particular situation, no, sir, and as a general proposition there is no legislative history.

On occasions where there are study committees and things of that nature, there would be some, but in this particular situation there was none.

Lewis F. Powell, Jr.:

Were the regulations adopted in June, 1977, in effect at all times relevant to this case?

William G. Broaddus:

Yes, sir.

They have been subsequently amended in 1980, and I believe again in ’81.

I don’t believe that the amendments are material in terms of the substantive requirements.

Byron R. White:

Who issues the regulations?

William G. Broaddus:

The State Board of Health, sir.

Byron R. White:

Is there an administrative law procedure in Virginia for–

William G. Broaddus:

Yes, sir, it requires public hearings, advertisement.

People have an opportunity for input and consideration.

Byron R. White:

–Were these regulations adopted after such a procedure?

They must have been.

William G. Broaddus:

I can only assume that they–

Byron R. White:

Is there a record kept of that?

William G. Broaddus:

–Of the proceeding itself?

Byron R. White:

Yes.

William G. Broaddus:

I don’t know in this particular case whether there was a record kept or not.

Byron R. White:

There is a notice.

Is there a proposal sent out?

William G. Broaddus:

Yes, sir.

There is advertisement, and there are also various means of dissemination of information of proposed hearings on subjects.

Byron R. White:

Well, do you know whether the proceeding generated any interest in the community and that there were responses?

Was there public hearing?

Was there a public hearing?

William G. Broaddus:

With respect to the adoption of the–

Byron R. White:

Of the regulations.

William G. Broaddus:

–of the regulations?

Justice White, I cannot answer that question.

I simply do not know how extensive the public interest was in those regulations.

John Paul Stevens:

The regulations recite there was a public hearing on January 26th, 1977.

William G. Broaddus:

Yes, sir.

I am unable to advise the Court as to how many people attended, the nature of the discussion–

Byron R. White:

But you don’t know whether there was a record of it?

William G. Broaddus:

–No, sir, I do not.

Byron R. White:

Or what the factual basis for the regulation was?

William G. Broaddus:

Well, the basis would be in the code of Virginia, which provides that hospitals may be or would include out-patient hospitals under regulations authorized and promulgated by the State Board of Health, meeting certain specified requirements in the code.

That’s the basis for it.

Byron R. White:

Well, did the statute require that hospitals be licensed?

William G. Broaddus:

Yes, sir.

Byron R. White:

Did it require that every second trimester abortion be performed in a licensed hospital?

William G. Broaddus:

The criminal code of Virginia does.

Yes, sir.

Now, as one goes into procedures such as saline amniocentesis, which is the procedure that was used in this particular case, the mortality rate is substantially higher than the mortality rate for live birth, and as one considers the mortality rate for second trimester abortions in relation to the mortality rate for first trimester abortions, the mortality rate for second trimester abortions is much higher.

It is at least five times higher for even the safest second trimester procedure, and 17 times higher for the procedure which was utilized in this particular case.

Warren E. Burger:

When you say hospital, when you said hospital in response to that last question, that includes any clinic like the petitioner’s, the appellant’s clinic here if he had secured a license as an out-patient hospital.

William G. Broaddus:

Yes, sir.

William G. Broaddus:

That’s correct.

Warren E. Burger:

So it doesn’t mean… the statute does not… is not limited to a hospital in the traditional sense that we think of hospitals.

William G. Broaddus:

That is exactly right, sir.

Exactly right.

Byron R. White:

Perhaps I should ask my question another way.

Then I will leave you alone.

Could the board or whoever issues licenses, whoever issued these regulations, could… did they have the authority under the statute to permit second trimester abortions to be performed in a facility such as the doctor was running without a license?

William G. Broaddus:

Not without a license.

Byron R. White:

So it had no authority whatsoever to exempt him from the licensing requirement.

William G. Broaddus:

That’s correct, sir.

It did not.

Now, the American College of Obstetricians and Gynecologists only this year changed its position from that which was referred to in Roe v. Wade, and they have suggested that there are certain limited procedures within a certain limited time in the early part of the second trimester of pregnancy which in their opinion may be safely performed outside of general acute care hospitals.

But they say that even those procedures should be performed in out-patient facilities meeting the requirements for surgical out-patient facilities as prescribed by the states, and that they should be licensed by the states.

Virginia law requires no more than that organization recommends.

Warren E. Burger:

Are those standards in evidence in this appendix?

William G. Broaddus:

They are referred to, Mr. Chief Justice, in the amicus brief filed by the American Medical Association and the American College of Obstetricians and Gynecologists in the other two cases which the Court will hear this afternoon, and I believe the reference specifically would be on Page 23 and 24 of that brief.

Virginia would respectfully suggest that based on H.L. v. Matheson, it is not incumbent upon it to fine tune its statutes to facilitate abortions, but if fine tuning is necessary to accommodate any proven medical advances, which are not present in this particular case, but if that were the obligation imposed upon us, then certainly the legislature would be capable of making such changes.

In this particular situation, even Dr. Cates, who suggests that certain procedures could be safely performed outside of hospitals, acknowledges in an article printed on Page 101 of our addendum that other authorities, to use his term, recommend that all abortions in the second trimester be performed in hospitals.

I would like to turn briefly–

John Paul Stevens:

Mr. Broaddus, may I ask you a question?

William G. Broaddus:

–Certainly, sir.

John Paul Stevens:

Your fine tuning comment made me think of this.

Is it not correct, though, that within the second trimester, that there is only one justification for regulating the procedure, namely, protect the maternal health of the woman involved?

William G. Broaddus:

Yes, sir.

John Paul Stevens:

Now, something in the record, I can’t remember what it is, indicated there were some 6,000 second trimester abortions performed in Virginia.

Is it safe to assume that the state is making sure that all of those are performed according to the standards that are… the health standards that you are advocating?

William G. Broaddus:

I believe, sir, that the information in the addendum suggests that there are approximately 3,000 abortions performed in the second trimester, and that they were performed, or at least there is other information in the addendum that suggests that… I am getting somewhat confused on my facts.

I believe that there are approximately 3,000 abortions performed–

John Paul Stevens:

During what period of time?

William G. Broaddus:

–In the second trimester.

John Paul Stevens:

But during what… during a year, or during–

–For 1978, and 1979 a similar number.

And there is some kind of an enforcement program to be sure they have all been performed in accordance with the statute, is there?

William G. Broaddus:

There are requirements that the clinics and the hospitals be inspected annually to ensure that they continue to maintain the standards that they are required to keep.

Beyond that, unless it comes to the attention of a local prosecuting authority that there has been a violation of the law, then I don’t know of an enforcement program as such designed for this particular procedure.

John Paul Stevens:

But if in fact a significant number of them were not being performed in appropriate facilities by reason of the statute, then the question, I think, would arise as to whether the statute is in the best health interests of the people involved.

William G. Broaddus:

Well, I would respectfully suggest, sir, that there is no information in the record of this case that suggests that they are not uniformly performed in the second trimester.

John Paul Stevens:

And I take it there is no legislative history indicating what kind of an inquiry the legislature made as to the possible impact of this statute on where these operations might be performed.

William G. Broaddus:

There is no written legislative history that we could bring before this Court that would indicate the nature of the inquiry.

The committee did make inquiries as to the medical health concerns, but that is not a written document which–

John Paul Stevens:

As far as public records goes, is this the only prosecution involving a second trimester abortion of which we have any official knowledge?

William G. Broaddus:

–I am not aware of any other prosecution, sir.

Warren E. Burger:

You referred to investigations or inspections, periodic inspections by the State Health Department of hospitals.

That is done on an annual basis, is it?

William G. Broaddus:

Yes, sir.

Warren E. Burger:

Now, does the State Department of Health inspect in any way establishments of the kind that this appellant was operating?

William G. Broaddus:

Not unless he is possessing a license.

Without a license, there would be no inspection.

Warren E. Burger:

On the facts of this case, has he been subject to any periodic examination?

William G. Broaddus:

There would be no obligation for the State Department of Health to make such an investigation.

Warren E. Burger:

He would be just like any other doctor’s office.

William G. Broaddus:

Yes, sir.

Thurgood Marshall:

General, you talked about there was no written evidence of the state’s reason for this statute.

As a matter of fact, there is no evidence, is there, in this record, of the purpose of the state?

William G. Broaddus:

None in the record of the trial.

That’s correct, sir.

Turning briefly to the two criminal law related questions, Virginia–

Byron R. White:

Well, did the defendant put in any evidence going to the justification for the hospital requirement?

Any expert testimony?

William G. Broaddus:

–The defendant put on experts who testified that in their opinion, his particular facility was sufficiently well equipped, that it was safe to administer the procedure within that facility.

Byron R. White:

They didn’t… He didn’t challenge the requirement of having some facility that measures up to standards?

William G. Broaddus:

That’s correct, sir.

He did not.

He simply tried to bring himself, as I read the record, within what is a–

Byron R. White:

He could have had a license if he… He should have been able to get a license if he applied for one?

William G. Broaddus:

–Yes, sir.

William J. Brennan, Jr.:

Well, I gather, Mr. Broaddus, it is no violation, criminal or otherwise, is it, or was it, for him to operate without a license?

William G. Broaddus:

No, sir.

No violation, so long as he didn’t perform second trimester abortions in that office.

William J. Brennan, Jr.:

I see.

Or some other operations that might require hospitalization, without a certificate that he might do so.

William G. Broaddus:

I don’t know of any other criminal law requirements for hospitalization requirements.

Certainly he could maintain his practice, perform first trimester abortions in that facility.

John Paul Stevens:

Apart from the criminal law, is there any Virginia statute that restricts the kind of operation he might perform in that facility other than second trimester abortions?

William G. Broaddus:

I’m not aware of any.

John Paul Stevens:

Brain surgery or anything like that?

William G. Broaddus:

No, sir.

John Paul Stevens:

He could do that at home.

He could do that at home, I guess, brain surgery.

0 [Generallaughter.]

William G. Broaddus:

Well, I would respectfully suggest, sir, that surgeons are not likely to perform appendectomies or other types of operations in their offices.

Warren E. Burger:

Except in an emergency, conceivably.

William G. Broaddus:

Conceivably, yes, sir.

Warren E. Burger:

If a patient came to the office, and it was obvious that there was a ruptured appendix, conceivably he might be justified in doing it right there.

William G. Broaddus:

Certainly.

Yes, sir.

Byron R. White:

Well, there are laws against malpractice, I suppose.

Or they might well lance a boil, a carbuncle, to dignify it, in the office.

William G. Broaddus:

I apologize, sir.

I didn’t catch your question.

Harry A. Blackmun:

What I am trying to say is that there are all kinds of surgical procedures–

William G. Broaddus:

Yes, sir.

Harry A. Blackmun:

–minor and major, and would it be violative of Virginia law in any respect if a physician lanced a carbuncle on the back of a patient’s neck in the office?

William G. Broaddus:

No, sir.

Harry A. Blackmun:

And that is a surgical procedure.

William G. Broaddus:

Yes, sir, I would agree.

Now, that brings up the medical necessity question.

The Virginia Supreme Court has authoritatively construed the Virginia statute, and it has decided, indeed, it decided in 1966 or ’67 in the Russo case, which it states in its opinion, that the medical necessity issue is a matter for the defense to assert, and once the defense asserts it, then the burden is placed upon the Commonwealth to prove beyond a reasonable doubt that there was no medical necessity.

Byron R. White:

What is involved in the assertion?

William G. Broaddus:

That could be brought about either through the cross examination of witnesses for the prosecution, by the introduction of witnesses on his own behalf, or through any other means which brings it to the attention of the court and the prosecution.

Byron R. White:

But it isn’t necessarily fatal to the state’s case on its side of the case if it puts on no evidence of necessity.

William G. Broaddus:

That’s correct, sir.

That’s absolutely correct.

Now, in this particular case, counsel for Dr. Simopoulos argued that the indictment was effective because it did not affirmatively negate medical necessity, and that was the argument which I believe the Court will find if it examines the transcript.

I do not believe that the Court will find an argument that the Commonwealth was affirmatively under the constitutional obligation to prove in its case in chief that there was no medical necessity.

Dr. Simopoulos we do not believe invoked that defense at trial, and how could he?

He stated that the girl’s condition was normal which he ascertained as a result of his examination of her.

He stated that she could carry the fetus to term.

He stated, and I quote, that

“The option of abortion was entirely up to her, and I had no business in influencing her one way or the other. “

He simply left the decision entirely up to her.

So, we submit that he has no standing to assert that issue at this time, but in any event, the Virginia Supreme Court has found that there was no medical necessity.

That finding is certainly supported by sufficient evidence in the record.

Also, the court’s construction of the statute does not in any way implicate improperly presumptions or in key elements of a crime.

Such was the case in Mullaney or in Sandstrom.

The defense is never required to shoulder the burden of proof.

It simply has to invoke the defense.

I think that that will make this particular situation fall well within this Court’s decision last term of Engle versus Isaacs, where the defense merely had to invoke the defense of self-defense.

The prosecution then had to affirmatively disprove it beyond a reasonable doubt, and the Court concluded that even in those circumstances, that did not mean that on its case in chief, the prosecution had to disprove that as an element of the offense.

John Paul Stevens:

Mr. Broaddus, may I ask you another question about history?

John Paul Stevens:

Because when I first read this statute, I understood it to require the procedure to be performed in a conventional hospital, and I have since learned that since 1977, at least, it is permissible to perform it in these other licensed facilities.

During the interval between the period when the statute was enacted in 1977 when the regulations were adopted, could the procedure have been performed in any facility other than a conventional hospital?

William G. Broaddus:

Prior to ’77, sir?

John Paul Stevens:

Yes.

In other words, I am just wondering what the legislature was thinking of when it enacted the statute.

William G. Broaddus:

I think prior to ’77, sir, it would have been possible to perform it legally only within a conventional general acute care hospital, because the state prior to that time did not have the licensing requirements for out-patient hospitals.

Thank you.

William G. Broaddus:

On the issue of causation, which is mentioned in Dr. Simopoulos’s brief, we shall touch upon that very quickly.

Again, the starting point is the doctor’s own examination, in which he stated that her condition was normal, and that she could carry the fetus to term.

He then injected her with a saline solution for one purpose, to induce an abortion.

That was the only purpose.

His own witness testified that the procedure works at least 90 percent of the time, and an American College of Obstetricians and Gynecologists Bulletin, which we have printed on Page 78 of our addendum, states the procedure is effective 97 percent of the time within 72 hours.

Between the time of the injection and the delivery, the girl had only peanut butter and jelly sandwiches, and pain pills prescribed by the doctor.

There was no other intervening cause which was likely to bring about an abortion.

Within the normal time–

Harry A. Blackmun:

Did he prescribe the peanut butter sandwiches?

It sounded as though that is what you said.

0 [Generallaughter.]

William G. Broaddus:

–She told the doctor, Mr. Justice Blackmun, that she was going to go to a motel.

He said that was okay.

And when she went to the motel for the period of… prior to delivery, she carried with her that supply.

Within the normal time period within which the procedure is predicted to work, in fact, it did work.

She delivered her fetus just as Simopoulos had predicted, and just as he had intended.

So when the evidence is viewed in the light most favorable to the prosecution, as it must be, certainly it is sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed.

For the reasons which we have stated and the reasons in our brief, we respectfully ask this Court to affirm the judgment of the Supreme Court of Virginia.

Byron R. White:

General, let me ask, suppose there is compliance by an out-patient clinic with the regulations and the law, and they get a license, and they are authorized to perform a second trimester abortion, and… do they keep the patient there until the abortion is… or would they have at that time?

William G. Broaddus:

The procedure, the surgical procedure has to be performed within the hospital.

Certain procedures can be performed, and that is the entire culmination of the process.

In this particular situation–

Byron R. White:

It is because of the method that was employed–

William G. Broaddus:

–Yes, sir.

Byron R. White:

–that there was an interval.

William G. Broaddus:

That’s correct, sir.

Byron R. White:

What if a licensed establishment had used this method at this time?

Would they have released her until the abortion was complete?

William G. Broaddus:

Presumably so, sir, even in a general acute care hospital presumably that would have been the situation.

She would have been instructed to return at the appropriate time for the delivery of the fetus.

Byron R. White:

Oh, she would return.

She would have been released?

William G. Broaddus:

Yes, sir, for the interval between the administration of the procedure and the time when the delivery is anticipated to occur.

Thank you, sir.

Harry A. Blackmun:

Do you know whether… Does the record show that she was instructed to return?

William G. Broaddus:

If I may answer the question, Mr. Justice Blackmun, that is a matter in dispute.

The doctor testified that he did instruct her–

Harry A. Blackmun:

That he did or did not?

William G. Broaddus:

–That he did instruct her to return.

His nurse gave her a set of written instructions which do state that she should return.

The girl stated that he never instructed her to return, that she told him she was going to a motel.

He said that was okay, and she knew exactly what he meant by that, and that when she read the instructions after she left his office, she was confused because she had previously clearly understood that he knew that she was not coming to the hospital at any time.

Harry A. Blackmun:

Well, it is disturbing that she delivered in a motel.

William G. Broaddus:

It is distressing.

Yes, sir.

Warren E. Burger:

Mr. Lucas.

Roy Lucas:

If I may further reply to Justice Blackmun’s question concerning whether she was told to return or not, under the Virginia Supreme Court interpretation of the statute, that might not make any difference, but on Page 187 of the Joint Appendix, she squarely admits that the doctor told her to go to the hospital if she had severe cramps.

She never threw away the instruction sheets, which were clear, and his two phone numbers 24-hour-a-day were circled in there.

This question about ambulatory surgical centers is extremely important, I think, to this particular case, and it is unfortunate there was no opportunity to respond to it in the lower courts or in the trial or to put on a full exposition of it.

Looking at the regulations, the Part 3 regulations on out-patient hospitals actually require more extensive extra technology than do the Part 2 on out-patient surgical hospitals.

In construing those regulations and reading them as to what do they contemplate, there is no indication whatsoever that the out-patient surgical hospital scheme contemplates second trimester abortions.

There is no evidence that a second trimester abortion has ever been done in an out-patient surgical hospital.

The Commonwealth named four facilities.

Roy Lucas:

The Virginia Heart Institute certainly does no second trimester abortions.

The Hampton General Out-Patient Emergency Center certainly does none.

The Fairfax Surgery Center is in the community involved here, and was never named by any witness as permitting second trimester abortions.

And there is another one in Norfolk, Virginia, that I know nothing about, except it is not in the list of second trimester abortions offered by the Commonwealth in its exhibits.

They list no out-patient surgical facility that ever performed a second trimester abortion.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.