United States v. Vuitch

PETITIONER:United States
RESPONDENT:Vuitch
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 84
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 402 US 62 (1971)
ARGUED: Jan 12, 1971
DECIDED: Apr 21, 1971

ADVOCATES:
Sanford Jay Rosen – for the appellant
Stephen Marc Slepin – for the appellees

Facts of the case

The District of Columbia had an abortion statute that prohibits abortion unless “necessary for the preservation of the mother’s life or health.” Milan Vuitch, a licensed physician, was indicted in federal district court for performing abortions that violated this statute. The district court held the abortion statute was unconstitutionally vague. The United States appealed directly to the Supreme Court.

Question

(1) Does the United States Supreme Court have jurisdiction under the Criminal Appeals Act to determine if the District of Columbia’s abortion statute is unconstitutionally vague?

(2) Is a statute that prohibits abortion unless necessary for the preservation for the mother’s life or health unconstitutionally vague?

Warren E. Burger:

Mr. Huntington you may proceed whenever you are ready.

Samuel Huntington:

Mr. Chief Justice, may it please the Court.

This is a direct appeal under the Criminal Appeals Act from the United States District Court for the District of Columbia.

That Court struck down a major provision of the District of Columbia abortion statute on the grounds that it was unconstitutionally vague on it’s face.

Two indictments were returned in the District of Columbia, charging Appellee, Dr. Milan Vuitch who was a licensed physician, with procuring or attempting to procure two abortions in violation of Section 22-201 of the DC Code.

That Section makes it a crime to procure or attempt to procure an abortion “unless the same were done as necessary for the preservation of the mother’s life or health.”

Appellee’s motion to dismiss the indictment was granted before trial by the District Court on the grounds that the quoted phrase was unconstitutionally vague.

The record does contain no development whatever of any of the facts bearing on the charges contained in the indictment.

Our basic position in this Court is that the District Court erred in striking down the abortion statue for vagueness on its face.

The result of the Court’s decision, if allowed to stand, is that there is now no limitation in the District of Columbia on the performance of abortions by physicians.

We believe that under a proper interpretation of the statute, there is a definite class of situations to which the statute can be applied without running into vagueness problems.

For this reason, we think the case should be remanded to the District Court for further proceedings.

Before reaching the merits of the District Court’s ruling however, there are certain jurisdictional questions, which this Court has requested the parties to brief and argue.

They are as follows; First, does this Court have jurisdiction over this direct appeal under the Criminal Appeals Act, not withstanding the fact that the underlying statute applies only within the District of Columbia.

Second, could the Government have appealed this case to the Court of Appeals under Section 23-105 of the DC Code.

That Section gives the Government the same right of appeal that is given to the defendant and third if the Government could have appealed to the Court of Appeals, should this Court, as a matter of sound judicial administration, abstain from accepting jurisdiction under the Criminal Appeals Act.

First, let me point out two significant developments since the time we filed our brief.

These are the passage of the DC Reform Act and the amendment of the Criminal Appeals Act.

Under the DC Court Reform Act which became law, signed into law last July and it becomes effective February 1 of this year, jurisdiction over “any criminal case under any law applicable exclusively to the District of Columbia will by mid 1972 rest in the Superior Court of the District Columbia.

Appeals from that Court will run to the District Court, the District of Columbia Court of Appeals which of course is not the Circuit Court of Appeals.

The District of Columbia Court of Appeals is the Court of record and its judgments are reviewed by this Court in the same way that the State Court judgments are reviewed.

Of more immediate impact and perhaps of conclusive impact on direct appeals of course is the amendment of the Criminal Appeals Act which abolishes direct appeals to this Court.

Now, that does not apply — it applies only to cases begun and by that we mean, we interpret that to mean begun by indictment, after January 2nd of this year when the law was signed.

So that case does not — that law does not apply to this case, but the effect of these two laws we submit is to make issues, the jurisdictional issues presented here issues which do not have ongoing significance.

Well, turning —

That means there isn’t much difference as a practical matter whether it’s state jurisdiction or not?

Samuel Huntington:

No, I believe it does make a considerable amount of difference whether you take jurisdiction of this case.

I just mean that the issues you decide here, the jurisdictional issues will not have overriding significance in the future.

Well, I look too much in my comment.

We don’t worry to much about jurisdictional questions, just accept the rest of them.

Samuel Huntington:

That is the Government’s position, yes sir.

Potter Stewart:

Well, I thought it was that any jurisdictional devision will be of a very limited precedential value in the light of the statutory changes?

Samuel Huntington:

That is right, that is true.

Well, turning to those issues now, the old act as it applies to this case states that an appeal maybe taken by and on behalf of the United States from the District Courts, direct to the Supreme Court from a decision or judgment dismissing any indictment with such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded.

Harry A. Blackmun:

I take it, it’s your position that that applies even to a statue restricted in its application to the District of Columbia.

Samuel Huntington:

Yes, that is right.

Harry A. Blackmun:

As it stands in contrast to one which is applicable throughout the country in which the normal District Court elsewhere will have to do with?

Samuel Huntington:

That is right, yes.

We believe that Congress perhaps could have made a distinction between statue applicable only within the District of Columbia and statutes of nationwide application, but the Congress did not make that distinction here?

Harry A. Blackmun:

But certainly it is true on the state side, we have entirely separate criminal procedure with channels its way up through the State Supreme Courts and here we have or dealing with a local statue, which conceivably could be argued anyway, should go up to the Court Appeals rather than here?

Samuel Huntington:

Well, that is certainly true.

I think an analogy can be drawn to the review of the challenges of state statutes by a Three-Judge District Court.

Under that statute, this Court has interpreted the term statute in that Three-Judge District Court provision to mean statute of statewide applicability rather than a local statute.

We believe that this distinction was not carried over to the federal area in the case Shapiro against Thompson, involving the welfare residency requirements of the District of Columbia.

There this Court interpreted the statute there 28 U.S.C 2282, which said that a Constitutional challenge to an act of Congress applicable only to the District of Columbia must be heard by a Three-Judge District Court.

This Court decided that any Act of Congress included an Act of Congress limited in application for the District of Columbia.

Now I would suggest that at the time of Shapiro that perhaps were arguments for restricting the scope of that phrase, they were rejected.

The Court stated they could see no reason to draw that distinction and we submit that, that is dispositive of this issue here.

The only other phrase in the old Criminal Appeals Act which we could see would perhaps lead to some doubt as to whether this Court had jurisdiction as the the term District Court as to whether that includes the District Court for the District of Columbia.

We have nothing to add to what we said in our brief there.

We concluded in our brief that when the statute was originally passed, it did not include that term.

It did not apply to the District of Columbia.

It was amended in 1942 to specifically mention the DC Circuit Court of Appeals and it has been interpreted by the Court of Appeals and by this Court that, that amendment had the effect of making the Court of — the Criminal Appeals Act applicable to the District Courts.

We don’t believe that is a substantial issue.

Well, coming to the second point that is whether this Court has jurisdiction, whether the Government could have taken this case to the Court of Appeals under DC Code Section 23-105.

I’d point out that that Section has been amended and as of February 1st it is part of the DC Court Reform Act as of February 1st it is now 23-104 and the Section is reworded much more specific.

We submit that it doesn’t have a material effect on this issue.

We had assumed at the time we brought appeal here that our only choice was to come to this Court.

It was because in Carroll against United States, this Court reviewed the overlap of the Criminal Appeals Act in the DC Appeals Provision and concluded that the explicit directions of the Criminal Appeals Act will apply whether it too might apply to the same case.

That decision, however, was placed in doubt, that observation was placed in doubt by the decision last spring by this Court in United States against Sweet.

Samuel Huntington:

In that case, the dismissal of an indictment had been appealed to the Court of Appeals under the 23-105.

The Court of Appeals without determining whether it had jurisdiction certified the case to this Court.

This Court determined that certification was inappropriate because the certification provisions of the Criminal Appeals Act were limited to situations where the appeal had been taken to the Court Appeals pursuant to the Criminal Appeals Act and so was the case was sent back to the Criminal Appeals Act, but in its opinion this Court noted that the Court of Appeals had not decided whether it had jurisdiction under 23-105, which would at least indicate this Court thought there was a possibility that it did.

Well, assuming that can be said that, that it can be said that it would, the question then becomes whether this Court should accept jurisdiction under the Criminal Appeals Act, on the standing that both statutes might apply to its case.

We submit that because the Criminal Appeals Act states that an appeal maybe taken by the United States to this Court that this is an appeal as of right and this Court lacks discretion to reject –to refuse to take the case.

Potter Stewart:

Really argument is not as you just stated that this Court should accept this appeal, but rather that this Court must accept this appeal, is it not?

And that even though it maybe that you could have appealed to the Court of Appeals to the District to Columbia, nonetheless having appealed here, your submission is, as I understood it from your brief, this Court has no power now to transfer to the Court of Appeals and must accept jurisdiction of this appeal under the (Voice Overlap).

Samuel Huntington:

Only in the very limited sense where appeals obviously lack merit or lack — were not based in a substantial federal question as this Court construed its appellate jurisdiction to be discretion.

Potter Stewart:

Well, if it is a federal case, we can hardly say does not (Voice Overlap) Congress, can we?

Samuel Huntington:

Right.

William J. Brennan, Jr.:

Mr. Huntington was there any United States District Court in the District of Columbia in 1907?

Samuel Huntington:

No it was the Supreme Court of the District of Columbia at that time.

William J. Brennan, Jr.:

Well, suppose the Supreme Court of the District of Columbia in 1907 or 1908 had done what was done here by the District Court would that case dismissed of indictment and appealed directly here?

Samuel Huntington:

No in United States against Burroughs, this Court specifically said that the Act did not apply to the Supreme Court.

William J. Brennan, Jr.:

Does that have any relevance?

Now this statute we’re dealing with I gather is 1907 version, isn’t, not the 1942 version?

Samuel Huntington:

No, we’re dealing with the statute as amended in 1942.

William J. Brennan, Jr.:

I know, but the amendment in 1942 as I recall it, am I right, simply to establish the Government’s right of appealed to the Courts of Appeals.

The Government’s right of appeal directly to this Court derives only from 1907 statute, doesn’t it?

Samuel Huntington:

Well that’s right, but I think you have to interpret the statute in the light of the amendments —

William J. Brennan, Jr.:

Well my question then is if that so, as a fact that you could not have compile directly from a dismissal of an indictment by the Supreme Court of the District of Columbia.

Does that bear on the instruction we only give the 3731 in its 1907?

Samuel Huntington:

It certainly does bear on it.

The Court of Appeals and this Court in Caroll acknowledged the decision in Boroughs and concluded that the affect of the Forty-two Amendment had been to open up direct appeals to this Court from the District Court.

Now, if this Court wishes to reexamine those, the observations in Caroll and the Court of Appeals’ decision in Hoffman, certainly the provision of the 1907 Act is relevant.

Well, turning to the merits of the District Court’s ruling, I’ll state again that our basic position is the District Court should not have struck down the statue of its face.

We believe that under any interpretation of the statute, there is a distinct class of cases to which it can be validly applied.

Namely, we believe it be applied where a doctor has made no attempt to determine whether or not health reasons exist which would justify an abortion.

(Inaudible) as far as vagueness is concerned?

Samuel Huntington:

As far as vagueness is concerned.

Samuel Huntington:

I’m limiting my discussion right now to the vagueness point.

Appellee argues that in view of the constitutional stature of the rights that he asserts and the impact which the statute has on the practice of medicine, he should be allowed to attack the statute on its face.

This Court has afforded standing in certain First Amendment cases to attack the statute on its face and it’s presumably on these cases that appellee relies.

Of course, the leading case in that area is the Dombrowski against Pfister case where a subversive activity statute of Louisiana was struck down by this Court.

We submit that this is not the Dombrowski situation.

We concede of course the point that appellee stresses in his brief that there are many physicians in the District of Columbia who are dissatisfied with the abortion statute and that perhaps many more abortions would be performed if statute did not exist.

But by this concession, we don’t believe that establishes that the rights asserted are of such constitutional significance that the statute should be struck down on its face.

Just that comparing this case with the Dombrowski, first the constitutional rights asserted here are novel and for the most part unexplored.

We submit they should not be determined in the abstract.

In Dombrowski well established First Amendments rights were an issue.

Second, and as I stated we believe there is distinct category of cases this statute that can validly be applied to.

In Dombrowski it is very questionable as to whether that statute could be applied to any significant category of cases.

Finally, in Dombrowski the conduct of those challenging the state statute was not at the hardcore type which would be prohibited by any reading of the statute.

Here, only the development of a record will demonstrate whether appellee’s conduct is at the hardcore type of not.

Assuming, however, that the appellee should be allowed to attack the statute on its face to reach the merits of the District Court’s holding that the statute was unconstitutionally vague.

It is argued that the District Court misconstrued the statute and that under a proper interpretation the statute is not unconstitutional vague.

Of great concerned to the District Court was a possibility that a doctor would exercise medical judgment and determine that health grounds justify an abortion and that this judgment would then be subject to being second guessed after the fact by first the prosecutor and then the (Inaudible) the jury.

This concern follow from the court’s reading of the 1943 decision of the Court of Appeals in Williams against United States.

The District Court read that case as placing the burden on the physician of persuading the jury that his acts were necessary.

We submit that Williams did not hold that.

In the William’s case, neither side at his trial, neither side introduced any evidence of justification.

The sole issue in that case was who had the burden of coming forward with the issue, who had the burden of raising the issue.

In affirming the conviction, the Court of Appeals merely held that burden of raising justification has an affirmative defense was on the physician.

In our view, William is consistent with the proposition that the ultimate burden of persuasion is on the Government and remains on the Government, once the issue has been raised.

The District Court –.

Potter Stewart:

Wouldn’t it almost follow then on your reading of the Act that whenever an abortion is performed by licensed physician in good standing, and the mother survives in good health then it’s a legal abortion under the statute as you read it?

Samuel Huntington:

If the doctor makes a good faith judgment, exercises his medical judgment that health —

Potter Stewart:

I assume now a licensed physician in good standing in the profession that is not under any discipline, not under any cloud, to perform an abortion, it doesn’t follow in your reading of the statute that, that’s not a criminal act?

Samuel Huntington:

No, I think we would require that he at least raised the issue of whether he determined that health grounds necessitated —

Potter Stewart:

The doctor and his profession is to take of people’s health.

Potter Stewart:

And if he does something and he’s a doctor, licensed doctor, in good standing and he does something in the scope of his profession, isn’t there presumption that, he had been following his profession.

He comes to my house and treats me for a cold and that’s end of it.

He may use good judgment or bad, but he’s following his profession.

Samuel Huntington:

Well, we believe that the doctor will have broad scope in determining what health is, but we would suggest that the term health means that he has to make an examination of the woman and determine that for some — that because some condition of that woman (Laughter), some condition beyond the mere fact that she was pregnant.

I think if the doctor merely determined that the fact she was pregnant was sufficient grounds for performing the abortion that, that would raised in element of good faith and his good faith could be place in doubt if the —

Potter Stewart:

Well may be this particular doctor thinks that a woman, let’s assume she already has six children, her health, including her mental health isn’t — would be impaired by having a seventh child, then he performs the abortion, under your reading of the statute, I should think that’s not a illegal act?

Samuel Huntington:

If he does conclude that, if he does conclude that her mental health requires that she have the abortion, then we say you would be protected as long as that judgment is (Voice Overlap).

Potter Stewart:

But you’re going through all this rigmarole is having setup a defense in a criminal trial.

I should think the reading that you, yourself get from the statute.

From that reading, it would follow that whenever a doctor in good standing performs an abortion, that’s the end of it, it’s not a criminal act?

Samuel Huntington:

No, we don’t believe that would necessarily be true say if have doctor who performs —

Potter Stewart:

I don’t believe, of course, against the mother’s will or (Voice Overlap).

Samuel Huntington:

Oh!

Of course, we believe that if a doctor merely performed an abortion on demand, on the woman’s request, solely on the woman’s request without determining that special conditions separate that woman from the general class of women, a pregnant woman.

That special health grounds separate that woman from the general class of healthy pregnant woman.

We believe that if a doctor merely because of the fact of pregnancy performs an abortion on her request that he would violate the statute that he would have to make a good faith judgment that there were special conditions pertaining to that woman within his view jeopardized her health, whether either mental health or her medical health.

Potter Stewart:

And you would not agree that it would follow from the very fact that he performed the abortion —

Samuel Huntington:

No we would not (Voice Overlap).

Potter Stewart:

— he had made that judgment —

Samuel Huntington:

No.

Potter Stewart:

— in the exercise of his professional judgment, experience and skill.

Samuel Huntington:

No appellee, appellee does argue that because he cites the statistics to show that the abortion operation at least in the first trimester is safer than proceeding to term undergoing natural, regular child birth.

We submit that it is not that type of danger which the statute is aimed at.

The statute was passed at a time when abortion was a risky operation.

We believe that certainly the standard health that Congress had in mind when it adapted the statute, would involve a risk to health which would be greater than the risk of the abortion at that time.

In other words, they had in mind fairly — they had in mind complications which would interfere with child birth.

So we believe that just the fact that pregnancy alone is insufficient, if a doctor wee to at his trial if he were to introduce medical records which showed that the woman was pregnant and rest his case, I don’t believe that that would be sufficient for directed verdict of acquittal.

Harry A. Blackmun:

If I understand you, you’re really speaking of abortion on request?

Samuel Huntington:

Yes.

Harry A. Blackmun:

But nothing more?

Samuel Huntington:

But nothing more.

Harry A. Blackmun:

Do you have in the district any statute that applicable to vasectomy?

Samuel Huntington:

Not that I know off.

Harry A. Blackmun:

You do not, alright.

Byron R. White:

(Inaudible) Wouldn’t you suggest the Government if it was persecuting a doctor would have to do something more on its side of the case then show that an abortion was performed?

Samuel Huntington:

Well, this issue I believed is it does not have to be decided by this Court as to —

Byron R. White:

Alright it may not have to be decided, but it sounds to me as though you would think that the Government’s appearance in such case would be limited to showing that —

Samuel Huntington:

Well we do.

We believe that it is reasonable for mainly for convenience and proof purposes to place the burden of coming forward with evidence on the justification issue on the —

Byron R. White:

But this isn’t at all critical your case.

You could say that your burden would be to prove that the abortion was not done for a health reason and you would still reach the — present the issues that you’re presenting here?

Samuel Huntington:

Well that’s true, yes.

I don’t believe it’s necessary to go in with that.

Byron R. White:

We shouldn’t take on more below than you need to.

Samuel Huntington:

Well, at any rate the District Court was afraid that a physician’s professional judgment made in good faith, the District Court stated that judgment should not be challenged and we say we agree and we believe that the Williams case goes a long ways towards establishing a good faith as a defense.

We believe it is, but a small step for this Court to expand on the Williams holding and certainly this Court has the power, this being a federal statute, this Court has the power to construe the statute so as to limit the vagueness attack on it.

Now, there have been some decisions which we have decided in our brief where this Court has deferred on local matters to the decisions of the District Courts.

The case of the District of Columbia against Little, construing a search regulation of the DC Health Code, this Court concluded that where statutory questions are so unmeshed with constitutional issues that the complete disposition of the case is appropriate for this Court.

This is such a case.

In Williams, the Court of Appeals stated that a decision should not undertake the operation unless he is convinced in good faith of its therapeutic necessity.

The court later stated a competent physician who acts in good faith will always be in the position to come forward with the justification for any operation.

We do not believe this is a strained interpretation of the statute, other states have interpreted their statutes to allow good faith as a defense.

Potter Stewart:

Most of the other states permit an abortion only if the mother’s life is endangered, do they not?

Samuel Huntington:

That’s true.

In Massachusetts however, the abortion statute there has been interpreted to allow health grounds as a justification and good faith has been recognized there as a defense.

Potter Stewart:

But most of these — most of the state criminal statutes in the abortion area, allow defense only if life not just —

Samuel Huntington:

That was certainly true —

Potter Stewart:

Is that not true?

Samuel Huntington:

Certainly true three or four years ago.

There are increasing numbers of states now (Voice Overlap)

Potter Stewart:

Well, I know that (Voice Overlap) isn’t that still true (Voice Overlap)

Samuel Huntington:

That’s still true.

I think Alabama is the only one that specifically mentions health.

As I say Massachusetts has interpreted their statute to include health.

Well, appellee asserts here numerous other that — numerous other constitutional issues should be decided by this Court.

Those claims were presented to the District Court, but the District Court did not cite it.

Byron R. White:

Did the District Court discuss them?

Samuel Huntington:

The District Court indicated that significant constitutional rights were involved.

Byron R. White:

Do you think the District Court indicated its views about any of these issues or –?

Samuel Huntington:

Well, it did.

It certainly — it stated that that there was unquestionably some impingement of rights involved here.

Now, it did not go into a way of the zone of interest of privacy versus state interest regulating (Voice Overlap)

Byron R. White:

Well, you’re suggesting that the appellees here should not be permitted to support this judgment on any other ground than the vagueness ground?

Samuel Huntington:

Yes, we’re submitting that there are sound reasons for this Court not to reach the issue.

It reached those other issues.

I think first of all this Court has often expressed policy against deciding constitutional issues unless necessary for a decision of a case.

And also the general policy of the Criminal Appeals Act to construe direct appeals narrowly, but more directly, we believed that the novel rights here should not be adjudicated without the development of a record.

We believe a record would be helpful in this case, the precise impact of the DC statute is far from clear.

Byron R. White:

Well on the remand that you have to order evidence.

I mean, the District Court if it didn’t reach this other issues, might strike down the statute on its face on another ground without any record at all?

Samuel Huntington:

He might.

We submit that the proper approach would be to develop a record.

I think that the questions raised which relate to the right to receive medical practice and the rights of women to choose when and whether to have children that they’re asserted by appellees as absolute rights.

We submit that the state interest in regulating abortion has to be measured against these absolute rights and that precisely what impact the DC code has in this area would be better decided on a specific context of a case.

Byron R. White:

You would I gather then prefer that you actually make a record of a lot of these medical and factual considerations rather than attempt to take judicial notice, and texts, and treaties and opinions and like?

Samuel Huntington:

Well, we submit that the issue in this particular case is somewhat different then the issues in most of the other cases dealing with abortion statutes.

Only in — I think it’s Doe v. Bolton, the Georgia three-judge court, was a statute involved that used the term health.

Now, because under our interpretation the doctor is given a broad scope to exercise medical judgment.

We don’t think that it should be permitted in the abstract that the statute interferes with that — with a basic right to practice medicine.

But should this Court reach the merits of the constitutional issues here involved, I’d like to state very briefly the Government’s position.

Samuel Huntington:

Basic questions about when life begins and when it should be protected or involved and underlie all of these abortion statutes, abortion laws that reflect the views of the major segment of this country’s population, that the embryo should be protected.

Contrary views of course are held by many people.

In our view, resolution of this very fundamental question is peculiarly within the province of the legislature.

We believe that the significance of the medical data which is referred to in the amicus brief of Dr. Hapenan (ph) is to show that it is very difficult to draw a line at some stage during pregnancy.

The common law drew the line at quickening because it was generally felt then that a quickening is when the baby became alive.

But the — during the 19th Century the medical profession realized that was really relatively insignificant.

It may have had an effect on the mother, she at that point she realized that something was moving inside.

But that — from a medical point of view, from the moment of conception on there was a fairly steady development which continues to —

Warren E. Burger:

It did become relevant in view of the district judge’s action never reaching the merits for deciding the statute —

Samuel Huntington:

Well we argue that you should not reach this question of just trying to state our views just to meet the possibility that you do so you don’t think that we do not have any views on the ultimate question.

Byron R. White:

Alright then (Inaudible)

Samuel Huntington:

Oh!

Yes, if the District Court is right on vagueness and of course we don’t reach these issues.

Byron R. White:

And you – (Inaudible) be the same (Inaudible) with respect to (Inaudible) crime for a mother (Inaudible)?

Samuel Huntington:

Yes, we believe it would be.

That’s under the DC code if the mother does not commit a crime.

The codes interpreted that way and we believe that this expresses the will of Congress in regulating abortion if it was sufficient to go after the doctor.

I believe that in some states do make laws do cover the women, but because it’s impossible to draw a line here or because it’s very difficult, there is substantial medical evidence.

It’s not based solely on the views of the church as some would contend, but it’s based on basic evidence as to what happens in the development of life.

Warren E. Burger:

I don’t yet see how this is relevant to the case as is in present posture counsel.

Once it’s stricken on its face as unconstitutional then this Court couldn’t reach the merits in any posture that I can see as it now stands?

Samuel Huntington:

Well we — we submit that is correct.

This Court should not reach the merits.

Potter Stewart:

I thought you were trying to answer Mr. Justice White’s question who put to you, isn’t it perfectly permissible for your fellow counsel on the other side to try to support this judgment on any basis that it can?

Samuel Huntington:

That’s right and we submit that there are sound reasons that this Court not to reach the issue, but if you do reach that issue.

If you do determine —

Potter Stewart:

That’s —- I thought you were directing yourself.

Samuel Huntington:

It’s not an absolute rule, there’s no absolution prohibition in this Court reaching these issues and in some cases you have reached issues which is not yet decided by the District Court and those are sited in one of the Amicus briefs.

Hugo L. Black:

I don’t quite understand why your arguing about the health of the embryo?

I thought the statute referred to the health of the mother.

Samuel Huntington:

The statute does refer to the health of the mother and the appellee does make the argument that the statute was passed solely as a health measure to protect the health of the mother.

We submit that while the legislative history of the DC provision is indeed sparse, I think the only statement we could determine with any possible relevance is that the author of the code drew on the provisions of other states.

Hugo L. Black:

I don’t quite understand what you mean by drew on the provision of other states, I thought this referred to the mother’s health only?

Samuel Huntington:

Well, it does refer to the mother’s health, but by limiting abortions to instances where the mother’s health required it.

We submit that the statute reflects a desire to protect fetal life.

That if that was not a factor that a broader statute prohibiting any internal surgery, unless necessary to preserve the life or health of the mother would have been more appropriate.

It was during the 19th century in the beginning of the 20th century that most of the laws regulating abortion were passed in the states.

Now, I think if we look at the —

Hugo L. Black:

Suppose there was, this as I understand it, am I wrong, refers to the health of the mother, what is necessary for the health of the mother?

Samuel Huntington:

Right, many of the other statutes passed refer only to the life or health of the mother.

They don’t mention fetal life either.

What I’m saying is that by placing —

Hugo L. Black:

Why do we have to get into the fetal life problem, when the statue is limited to the preserving the health or life of the mother?

Samuel Huntington:

Well our position is that the statue that by regulating abortion in that way, prohibiting it less necessary for the health of the mother, it reflects a judgment on behalf of Congress that where the mother’s health doesn’t require an abortion, the fetus should be protected.

In other words, if the mother just wanted an abortion on demand that this would not be sufficient and that in that case, the interest of the state of protecting the fetus prevails.

Hugo L. Black:

What you are saying as I gather it that the only thing involved is the health of the mother?

Samuel Huntington:

That is correct, that’s the only thing involved, but I think it is relevant and I’ll just draw the Court’s attention to —

Harry A. Blackmun:

Can I follow through with one question Mr. Huntington in line with what Mr. Justice Black was saying.

If we had a situation where the mother, during pregnancy, was exposed to rubella or there was some Thalidomide background or something and do I understand you to say that the DC statute would not warrant an abortion under those circumstances because the health of the mother is not involved.

Samuel Huntington:

That is correct, that’s what the statute states.

I just draw the Court’s attention in closing to a discussion of this particular issue in the essay by Professors (Inaudible) and Noonan in constitutional balance at pages, it’s in the recent book by Noonan entitled the Morality of Abortion which is cited in page 36 of our brief and I draw the Court’s attention to pages 223 to 226 of that essay which I think indicates a set of background of many of the abortion statutes.

I’d like to reserve the reminder of my time for rebuttal.

Warren E. Burger:

I think the issues have been sufficiently explored here so that were going to reduce the time a little bit counsel.

I’d allow you five minutes for rebuttal and we’ll reduce your’s to 50 minutes instead of a full hour, you can take any adjustments you want accordingly.

Joseph L. Nellis:

Mr. Chief Justice may it please the Court.

In large part I believe agrees with the United States with respect to the jurisdiction of this Court.

This Court has asked twice in this case whether as a matter of sound judicial administration it should abstain from accepting jurisdiction pursuant to the Criminal Appeals Act because the case involves the validity of a statute, the application of which is confined solely to the District of Columbia.

Your Honors, the statute certainly contains sufficiently broad language to make it appear, at least facially, that the Government had the right to make the executive choice of brining this case directly to the Court.

If I may I would just like to read the first paragraph, Title 18, U.S.C. 3731, “An appeal may be taken by and on behalf of the United States from the District Courts direct to the Supreme Court of the United States in all criminal cases in the following instances” and the instance of course of which we in the Government rely jointly is “from a decision or judgment setting aside or dismissing any indictment or information or any count thereof where such decision is based upon invalidity of the construction of the statute.”

So we respectfully suggest to Your Honors that the United States is correct in stating that under the Criminal Appeals Act, the case is here mandatory, but should the court feel that the case is not mandatory before it under the Criminal Appeals Act, we would like to suggest that there are factors other than the scope of applicability of the statute which dictate that the Court should entertain jurisdiction.

Joseph L. Nellis:

I believe that it is fair statement that this Court should accept jurisdiction by the exercise of its discretion, if nothing else.

What Your Honors have before you today is a matter of landmark and historic importance in the area of constitutional law.

Whatever merit there might be to a general policy of waiting in event initial decision by the United States Court of Appeals for the District of Columbia, I would respectfully suggest Your Honors that there are myriads of cases brewing it the Lower Courts and I’m sure Your Honors are aware of it.

We now have situations where in the state of Wisconsin, a Three-Judge Federal Court has declared the Wisconsin abortion statute unconstitutional.

This is also true with respect with Georgia and Texas and I’m advised that a Three-Judge Court in Pennsylvania has done the same.

Potter Stewart:

On vagueness grounds, all of this decisions are not?

Joseph L. Nellis:

No Your Honor, they vary.

In the Wisconsin case Mr. Justice Stewart the decision of the Three-Judge Court was that under the Ninth Amendment, embryo the rights described in the Griswold case, the woman has the right of privacy and indeed and I want to state it as succinctly as I can as an absolute right to an abortion.

She has the absolute right, the court said not to carry on statutory term, if I may use that phrase, an embryo which she does not desire to carry to term.

So my point is really this that there are so many cases —

Hugo L. Black:

You mean she has the right to dispose of it as she sees fit?

Joseph L. Nellis:

Yes Your Honor, the court in the Wisconsin —

Hugo L. Black:

To kill it?

Joseph L. Nellis:

No, Your Honor.

I don’t accept the notion that the abortion of an embryo before the 20th week before the common law quickening is an act of killing at all.

Hugo L. Black:

But suppose its after that?

Joseph L. Nellis:

Your Honor various statutes have held on the basis of medical knowledge that had since overtaken it that after quickening, an abortion should be performed only for the utmost and consequential health, a mental health as well as physical health reasons.

But in the Wisconsin case Mr. Justice Black, the court held that the woman has the absolute right not to have —

Hugo L. Black:

To dispose of?

Joseph L. Nellis:

Not to have the embryo continue to a point of birth up to 20 weeks.

Hugo L. Black:

But if you use ordinary language, you mean to dispose of the child?

Joseph L. Nellis:

To have an abortion which in effect disposes of a fetus, Your Honor.

Hugo L. Black:

It would have disposed of the child?

Joseph L. Nellis:

Your Honor I do not —

Hugo L. Black:

I’m not saying its wrong but I just don’t care to be cluttered up in a maze of words that means something else?

Joseph L. Nellis:

Mr. Justice Black I’m not trying to offer an escape to my answer.

I cannot accept, if you don’t mind me saying so, the word “child” as related to a fetus.

Hugo L. Black:

No whatever it is, right to dispose of it as she fits?

Joseph L. Nellis:

Of the fetus, yes Your Honor that is correct and in fact that the more modern American Penal code statutes provide for terminations of pregnancies under therapeutic conditions up to 20 and 24 weeks.

Our neighboring state of Maryland has such a statute and there are 13 others.

Joseph L. Nellis:

My only point is that there are so many cases pending, this matter is of such enormous national significance that I would hope that Your Honors would, if you don’t accept the mandatory provision of the criminal appeals act, that you would exercise your sound judicial discretion and take this mater under advisement on its merits as a matter of discretion.

Warren E. Burger:

Mr. Nellis may I interrupt you to ask you this question?

Joseph L. Nellis:

Yes, Mr. Chief Justice.

Warren E. Burger:

In this evolving, developing stage of medical knowledge on the subject that both of you have alluded to, how would we form any, how would we have any basis to pass on that absent a record of testimony as to what is the present state of medical knowledge on time and the term?

Joseph L. Nellis:

Your Honor, my answer would be two-fold.

First, I believe that it would be an enormous problem with the judicial administration to deal with every variegated facet of the abortion area on a case by case basis.

That is to say, the authorities which have been decided in our briefs, and in the Government’s brief, the statistics, the material, the medical knowledge, all of it is available.

It’s before Your Honors now.

If in each case where a doctor, and I feel strongly that it’s an unjust indictment, a doctor were indicted, we would have to send the case back in order to find out in each instance what his justification was for performing a particular abortion.

Your Honors would never be able to decide the tremendous variety of instances that occur in medical practice.

So, the first part of my answer is that this is not a subject matter in my humble opinion which can be dealt with on a case to case basis.

On the second level, I would like to suggest to you Mr. Chief Justice that there is hardly any area of criminal law more unique than this.

Here you have a situation in which a woman comes to a doctor and pleads with him to help her medically.

He helps her and he becomes the offender.

He faces the one to 10 years in jail.

It is the most anomalous situation in which the complaining witness and has been in the courtroom and have handled these cases, becomes the most reluctant witness against this doctor.

As a result of what I am saying, my point is simply that there are no facts that I can think of, that could be developed in a context of a criminal case that are not already fully before Your Honors in this case.

I would like to say there for that —

Harry A. Blackmun:

Mr. Nellis, may I interrupt you?

Joseph L. Nellis:

Yes Mr. Justice Blackmun.

Harry A. Blackmun:

You referred to pending cases in Wisconsin and another three-judge cases and indicated that those statutes were undergoing severe strain and had been held unconstitutional for vagueness.

This is not true across the board, is it, there are cases the other way?

Joseph L. Nellis:

Mr. Justice Blackmun in your home state of Minnesota —

Harry A. Blackmun:

I have this in mind.

Joseph L. Nellis:

Yes sir, I’m sure you did.

In your home State of Minnesota, I regret to say a three-judge court has recently held otherwise, but in the first instance in that case —

Harry A. Blackmun:

What about the state court there?

Joseph L. Nellis:

I beg your pardon sir?

Harry A. Blackmun:

What about the state court?

Joseph L. Nellis:

Yes, held otherwise as well.

Joseph L. Nellis:

I was going to say that the three-judge court in the Hudson case originally held that the statute was not in jeopardy because the doctor had not been indicted, but I am very hopeful, Your Honor, that in the great State of Minnesota, the same enlightened opinion will resolve this as resolved in another great states.

I feel very strongly that the proliferation, the multiplicity of suits which will be reaching, which are reaching this Court now, could be very deftly and intelligently approached by a decision here.

Harry A. Blackmun:

Well, my intimation there merely is that that is a case, if it ever comes here, which is fully developed because there has been a trial with testimony, medical and otherwise, in contrast to this one.

Joseph L. Nellis:

Yes, Your Honor.

I see the difference, of course, between the situations in which a doctor has been put on trial.

Evidence has been adduced.

He is required to come forward and give his good faith justification for his medical acts and the jury has either accepted or rejected than one of these justifications, which I think is another serious area of constitutional conformity.

But there are also cases where three-judge courts as in Wisconsin, Mr. Justice, have said that the statute is unconstitutional on its face because in the case of the Wisconsin’s statute, the court said in the Doctrine of Griswold and other cases in this Court that a woman has an absolute right of privacy under the Ninth Amendment and there is nothing in the way of a factual record that would either enhance or detract from the ability of the court to determine that right of privacy.

Harry A. Blackmun:

Now this certainly goes to your point of, this is a good way to get rid of these statutes, which is what you’re arguing?

Joseph L. Nellis:

Yes, Your Honor.

Byron R. White:

Well, Mr. Nellis, how about the ground on which the District Court proceeded, namely vagueness?

Now, let’s assume that a doctor proceeds to give an abortion on demand makes no medical diagnosis whatsoever, doesn’t purport to act on to protect the health of either the mother or the child or that fetus.

Why is that particular in the Vuitch or in any position to claim vagueness in the statute to which is encountered only if you really have been dealing with a health question?

He hasn’t been — this fellow hasn’t been confused at all, he’s says health is irrelevant.

Joseph L. Nellis:

Mr. Justice White, if I may say so, the factual circumstances you put would only be applicable in my judgment to a non-medical practitioner, in other words, “a quack.”

I do not know of any instance in which a woman coming to a reputable doctor’s office would not be examined medically, questioned as to her history and a determination made with respect to why it is, what it is, that is causing the doctor to make a judgment.

Byron R. White:

No, you just — I’ll just have to pursue you further then.

Let’s assume the patient comes in and wants an examination, the doctor says that “You’re pregnant, you’re perfectly healthy, it’s going to be a wonderful child.”

I foresee no difficulty.

She says, well, “By the way doctor, I don’t want the child, I want an abortion.”

And he says, “Oh, you do, well fine.”

There’s no health reason or whatsoever for you not having the child, but if you don’t want the child, well, that’s your right,” that’s your right and then he’s indicted under the statute and is he in any position to claim that the statute is vague?

Joseph L. Nellis:

Yes, Your Honor.

Your Honor has put a case which makes a very clear It very clear I think, the word “health.”

What does the word “health” mean in this statute?

I will ask.

Byron R. White:

Well, by on the facts I said, he said there is no health reason whatsoever for you not having a child?

Joseph L. Nellis:

But if you want to restrict me to the fact that you put Mr. Justice White, I would have a difficult time, may I have one fact of my own?

Byron R. White:

Go ahead.

Joseph L. Nellis:

Oh, not that that the doctor suggests that you can have an abortion just because she wants it, but that she says, “I’ve been married for 10 years and I have four children and we can’t afford another child.”

Joseph L. Nellis:

Now, we’ve added a factor which raises the question of whether or not the District of Columbia statute when it uses the word “health,” encompasses that kind of treatment.

Byron R. White:

Strange health argument, isn’t it?

Joseph L. Nellis:

Your Honor, I think it is fair to say —

Byron R. White:

Based on those facts —

Joseph L. Nellis:

Your Honor, I think it is fair to say and I don’t feel cornered if I may say so sir —

Byron R. White:

No, you shouldn’t.[Laughter]

Joseph L. Nellis:

I think it is fair to say that socioeconomic reasons in modern days apparently approach health reasons, that it takes money to raise children.

It takes love to want children.

Byron R. White:

Yes, well now you’ll have to deal with the case of the first child, no problems in money whatsoever and the doctor says “It’s going to be a wonderful child, no health reasons whatsoever,” and she says, “Well, by the way I don’t want it.”

Joseph L. Nellis:

And your question is sir?

Byron R. White:

Vagueness?

Joseph L. Nellis:

Oh!

Statute is completely vagueness to whether or not —

Byron R. White:

And that’s after —

Joseph L. Nellis:

Oh, certainly.

Byron R. White:

Did he claim he didn’t know —

Joseph L. Nellis:

Your Honor, I think that he could give no reason, he could do the job, although I can’t perceive of any such circumstance occurring, could do the job on the request of the mother.

And faced with an indictment under this statute could, I maintain, claim that the statute is completely vague as to whether or not the consideration you and I have been discussing Mr. Justice White is a proper one under the term “health.”

Warren E. Burger:

Mr. Nellis, I detected in one of your responses a suggestion that you were contemplating one rule under this statute for reputable doctors, I think you use that term and another for doctors who are not reputable.

Now, how can you have any difference?

Joseph L. Nellis:

If I gave that impression Mr. Chief Justice —

Warren E. Burger:

These reputable doctors have declined.

Joseph L. Nellis:

I apologize, that is not what I meant to say.

What I meant to say was that under those factual circumstances where a woman would not be examined medically, that would probably take place in a back alley on a back room where many abortions have performed because of the abortion law of the United States.

I did not mean to distinguish between reputable and disreputable doctors.

What I meant to say was that there are abortions being performed daily as a result of laws like the one we have under examination here Mr. Chief Justice that are performed by non-medical men and Judge Gesell wisely, in his decision in the court below, stated that all that I am saying about the vagueness of the statute is that abortions maybe performed only by compliment, duly licensed and qualified physicians.

Byron R. White:

Well, your argument on vagueness and the court below’s judgment or opinion would mean that — well, it wouldn’t make any difference how the law was drafted in terms of the time of the pregnancy?

Joseph L. Nellis:

I’m sorry.

Byron R. White:

I mean the law would be as just as vague if they provided that abortions could be performed after three months, but not afterwards.

Joseph L. Nellis:

Yes, provided there were no other criteria.

Byron R. White:

Yes.

Joseph L. Nellis:

Yes, Your Honor.

I wanted briefly to return and I hope the Court will indulge me when I say that I wanted briefly to return to the question of review because I know that this is troubling the Court and I feel that in some recent cases, this Court has acted in the manner to enhance the prospect of taking jurisdiction in this case.

In the Sisson case, which this Court decided in June of 1970, review was denied because in that case as I recall it, it was a motion in arrest of judgment which the Judge Wisesky in Boston had granted in connection with a selective service case, but I’m very impressed with the fact that in both the majority opinion and the dissent, this Court states that if a statute is unclear and as ambiguous as the Criminal Appeals Act, which Your Honors will not have to contend with after the effective date on January 2 anymore, the words of the statute are the only the first place to begin interpretation.

And I would say that on the face of the statute on the Carroll – on the face of the Carroll opinion and the opinion of the United States Court of Appeals for the District of Columbia Circuit that this Court mandatorily should take jurisdiction and that if there’s any doubt in this Court’s mind, it should exercise discretion in that regard.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Mr. Dorsen.

Norman Dorsen:

Thank you.

May it please the Court, I would like to return to the language of the statute that Mr. — that Judge Gesell found to be unconstitutionally vague.

Now, we’d like to emphasize in turning to the words of the statute that this is the only case we know of in which the professional judgment of a physician is being second guessed by the police, by a judge or jury in the exercise of his medical judgment.

But the language of the statutes permits an abortion to be made, if it’s necessary to preserve the life or health of the mother.

In our position, every term in that statute is impermissibly vague and cannot support the criminal indictment.

The word “preserve” was discussed at great length in the Bello’s opinion in the California Supreme Court in which Judge Peters in the first case reaching the conclusion of the statute of this kind was unconstitutionally vague, pointed out that can be subjected to at least two meanings, preserving life or a health in the abstract or maintaining the status quo.

The word “necessary” —

Hugo L. Black:

What do you mean in the abstract?

Norman Dorsen:

Well, it can be interpreted to mean that the doctor is attempting to preserve the life of this particular individual as distinguished from the person’s health at a particular time.

The word “necessary” was commented on by Chief Justice Taft as long ago as 1926 in the Trinidad case which is quoted in our brief, in which he said it’s a word of great indefiniteness and it’s objectionable in a criminal statute.

The phrase “necessary to preserve life” taken in this statute as in many other statutes that have been ruled upon by District Courts and Supreme Courts throughout country, lay down no standard by which the term can be applied.

Does the phrase “necessary to preserve life” mean that it is likely that death will occur, that death is eminent, that death is possible?

Hugo L. Black:

You have the brief Mr. Dorsen?

Norman Dorsen:

Yes sir.

It’s the brief for the Milan Vuitch signed by Messer’s Sitnic, Nellis and Lucas.

The statutory language —

Hugo L. Black:

It’s not a separate brief?

Norman Dorsen:

No.

Not.

The statutory language is of no help in parsing the meaning of the statute.

The legislative history is of no help and there are at least seven courts in this country that have already held that similar language is unconstitutionally vague.

Most of those are cited in the brief, some have been decided in the succeeding months.

Judges in a variety of Courts have pointed out the anomalous and indeed indefensible position that physicians are placed under statutes of this kind.

Norman Dorsen:

For example, one Judge said this would place the physician in the position of saying to his patient that in the exercise of his best medical judgment an abortion was advisable, but that the law prevented him from performing the same.

Judge Neville, in an earlier stage of the case that Mr. Justice Blackmun referred to, said in a concurring opinion, the case itself went off on the jurisdictional ground, but Judge Neville said I subscribe to the view that the entire medical profession an innumerable pregnant women live under sword of damocles.

The exercise of their best medical judgment, the giving of advice and the pregnant women’s freedom of choice is chilled by the cloud of a statute which renders their actions illegal.

Similar language, similar conclusions can be found in several other cases.

Now if the word “life” which has been the subject of most of the decisions to date is vague ‘necessary to preserve life,” the word “health” is innumerably vaguer.

There is no possible standard that can be derived from the language of the statute it seems to us which can give meaning and concreteness to that phrase.

What does it mean to say that there is a risk to the health of the patient?

How great must be the danger be is one taken to effect the nature of the operation?

What is the relevance of the person’s mental health, the effect upon her family, upon her marriage?

In this connection I would merely refer to at recent article which appeared in the Alabama Law Review in the summer of 1970, it’s not sited in the brief, but an article by Clifton Meder, the Dean of the Alabama Medical School and titled “The Mind of the Physician” pointed out to a legal audience.

Uncertainty is the part of the life of every physician and he goes on to give numerous examples of how its impossible frequently for diagnosis, for medical judgment to be solidly based.

He gives numerous examples of situations where precision is low in his language and error is likely.

Then he goes on to say, unfortunately often in his own apprised medical uncertainty, medicine and law are brought together.

What may appear to be negligence to a patient or lawyer may in fact be the reasonable decisions of a physician dealing with a large amount of uncertainty, either in a diagnosis or the treatment of a disease.

Harry A. Blackmun:

Mr. Dorsen, (Inaudible) all those words regarding malpractice generally?

Norman Dorsen:

No I would say that malpractice which of course an important problem to physicians, perhaps as important to problem as this, raises a different question.

It raises the question whether or not a physician is living up to the standards of his profession.

In this case, we have a criminal statute which forces him to guess what the word “health” means and it puts him in a wholly different position for a man who is being judged against the standard of the profession.

For example in this case, just to amplify that point, there is no suggestion as far as I know that Dr. Vuitch did not live up to the standards of his profession in terms of care, in terms of exercise of the normal physician’s skills.

Warren E. Burger:

Professor there is got to be many —

Harry A. Blackmun:

It is difficult for me to accept your explanation because and I shouldn’t draw on my own experience, but I’ve seen physician after physician after physicians say the same thing about malpractice that you have just said and I might also say, drawing on my own experience that I have known of many physicians who are not concerned about so sword of damocles in these decision making and who are courageous and make the decisions, they have to do it.

So that I take it what your argument comes down to is that, fundamentally it applies to the profession as a whole, that there are of course exceptions?

Norman Dorsen:

That‘s right and I think it applies to doctors who take on the burden of making a medical judgment and be forced to — in the face of the statute at this kind?

Warren E. Burger:

What I wanted to do in the contrary to illustration is take, pursue Justice Blackmun’s client.

A doctor who has a serious Cardiac patient and needs certain surgery, unrelated to the Cardiac condition.

He must make a very difficult decision there which whether this will endanger the health or the life of the patient, isn’t that true?

Norman Dorsen:

That’s correct.

Warren E. Burger:

And if he makes the wrong decision as the patient sees it later, the patient dies or is pretty disabled, he risks what has just Blackmun was talking about the malpractice, doesn’t he?

Norman Dorsen:

He may do so and I think that is a very fair question Mr. Chief Justice, but I think there is this difference.

Only in this type of operation, is there a criminal statute which puts the issue as flatly as it is put here, in the case that you mentioned and the cases I take that Mr. Justice Blackmun was discussing.

Norman Dorsen:

A man, a doctor as I understand it, must depart grossly from the proper standards of his profession before he can be criminally liable.

In this statute, there is no indication at all that what the standard is.

He just says “preserve the life for health of the patient.”

There is one other factor here.

In all of these statutes the doctor is put in the position where because he maybe afraid of the very type thing Mr. Chief Justice and Mr. Justice Blackmun that you both referred to, he is acting, he is bound to act in many situations inconsistently with the interest of the patient.

He wants to stay clear of the zone where he might be put to a criminal prosecution.

He wants to be sure that he will not be prosecuted, and therefore, he may stay as hand.

He may refrain from exercising what would ordinarily be his medical judgment because he doesn’t want to take the risk of a criminal prosecution, if a jury or a prosecutor second guessed him.

Warren E. Burger:

Is that different from the malpractice case?

Norman Dorsen:

The difference is in the standard.

The malpractice cases as I understand the Mr. Chief Justice —

Warren E. Burger:

You’re speaking of the caution Professor Dorsen, if he wants to be this very cautious practitioner and cautious in the sense of protecting himself and he would simply say it’s too risky to this surgery and then he refrains from doing the surgery.

Now, is that any different?

Norman Dorsen:

The difference I think is, the difference I think is, that in the malpractice case there is a well established standard by which the professional judgment of the physician is being evaluated.

This statute neither in its history nor in its language suggests what that standard is.

Byron R. White:

Mr. Dorsen, this is one of the standards of the medical profession and with respect to surgeons that surgeons are not to perform operations that are not required but they help the patient?

Norman Dorsen:

That’s correct.

Byron R. White:

And the risk of that if the doctor performs, he must make the judgment at the risk of being suspended if he’s wrong —

Norman Dorsen:

Perhaps —

Byron R. White:

— with respect to the whether the health of the patient requires the operation?

Norman Dorsen:

I don’t think in most cases that will be a realistic.

Byron R. White:

Well, isn’t that a standard though for medical profession with respect to surgeon?

Norman Dorsen:

I think it is.

As I understand it Mr. Justice White in order for a doctor to be suspended, he would have to depart grossly from the standards of his profession.

In this particular —

Byron R. White:

Well, I don’t care whether its gross or not, but the standard is the health of the patient requiring the operation?

Thurgood Marshall:

Suppose if he does, the real difference is not a criminal offense?

Norman Dorsen:

That’s right.

The suspension of course would not be a criminal offense, I might add —

Thurgood Marshall:

He can’t get insurance against criminal offenses?

Norman Dorsen:

I might add, I am not sure our brief covers this fully, but to indicate the difference between the conventional malpractice situation and the very special kind of situation that physicians are faced with here that this past summer, both the American Medical Association and the American College of Obstetricians and Gynecologist, as well as the American Public Health Association all voted in favor of having criminal penalties for abortions removed.

In other words, what I’m suggesting is that the physician who takes it upon himself to operate on a woman in the abortion context is not departing from what seem to be the present standards of the Medical Profession as recently stated, this past summer in one case I think it was in June and in one case it was in August.

Now I think training to a point that the Government stressed —

Harry A. Blackmun:

Mr. Dorsen may I interrupt you one more and I hope that neither you nor Mr. Nellies nor Mr. Huntington regard these questions as hostile.

I think it is better in the interest of the subject matter.

Is it not true or I suggest that the average physician and certainly the operating surgeon also has another avenue which he must bear in mind and that is the investigating team set off by the AHA, the American Hospital Association and the AAMA checking records to see whether there is any unnecessary surgery going on.

So that speaking of your sword of damocle is not only is the criminal aspect here, but also professional standards which bear upon it and I’ve already mentioned that the criminal aspect is one, but are there not these other factors which have some significance?

Norman Dorsen:

We are making — they certainly do have significance, and we are making no suggestion, I hope none has read into what even Mr. Nellies or I said regarding the continued applicability of professional standards.

We feel these should be applied.

What we are speaking about is, is the criminal law coming in this context with a vague criminal statute and imposing an additional sanction to the one that you’ve talked about, and the one Mr. Justice White has talked about.

Harry A. Blackmun:

But I would suggest that in the abortion area probably, investigation by AHA and AAMA teams is probably more acute than in almost any other area?

Norman Dorsen:

A further consequence of statutes of this kind is what seems to be the unfortunate application of the laws concerning abortion in a way which operates differently against the poor from the rich.

The statistics in the District of Columbia which are cited in our briefs and are found in medical journals with respect to other jurisdictions, suggest that in the wards where people without funds get their medical treatment, the number of abortions that are performed is significantly less, frequently one-fifth has many, has in private divisions.

Now I mention this, even though the facts are not here in the record, because there is a case that was decided in the District of Columbia, the Doe case which is cited in our brief, Doe v. DC General Hospital which indicates the special problems of poor people in getting an abortion.

A second important, perhaps ultimately decisive factor here, is the consideration that Judge Gesell did allude to, did not decide, but did allude to and that is the right of women to have an abortion.

Underline this case in our judgment is a basic constitutional right recognized by Judge Gesell, although he did not rule on the point specifically, and by Courts in many other jurisdictions that it is a right of a women to make her own decision, unaffected by the criminal law of the state whether or not to bear a child.

Warren E. Burger:

At any stage, at any stage?

Norman Dorsen:

I could myself not taking firm position on that.

We are not making the claim of any stage in this case.

Certainly we would say up to the point where the embryo was viable, that we wouldn’t, that it is not necessary for us to know that further in that here and and I would decline to do so.

Byron R. White:

(Inaudible) do you think it is not necessary to go through —

Norman Dorsen:

Pardon, I didn’t —

Byron R. White:

Do you think it is not necessary to go so far as — insofar as it (Inaudible)

Norman Dorsen:

As far as vagueness is concerned but not in the terms of ultimate question of whether or not a woman is entitled to abortion at every point up to birth.

The text books on the subject as I understand once the embryo reaches a certain stage, they don’t even call it an abortion, they call it induced labor, and becomes a somewhat different medical problem as I understand it.

But I would like to emphasize —

Byron R. White:

So somewhat of a different problems occurs so that fundamental right of the women not to bear a child?

Norman Dorsen:

Now that is a question I would not have an answer to in this particular case.

Byron R. White:

It is difficult?

Norman Dorsen:

Yes it is.

Byron R. White:

To draw any distinction?

Norman Dorsen:

It is and we are making the claim as spelled out at some length in our brief, that certainly up to the traditional lines of 20, 22, 24 weeks that is a right of a woman to have an abortion.

Hugo L. Black:

You mean a constitutional right?

Norman Dorsen:

That’s correct sir.

I don’t think it’s necessary —

Potter Stewart:

Under which provisions of the constitution?

Norman Dorsen:

Well I would rely on the liberty of the women in the Federal case of the Fifth Amendment.

Potter Stewart:

Well the liberty of what, not to be deprived of life, of property, or liberty without due process of law?

Norman Dorsen:

That is correct.

Potter Stewart:

It’s not unrestrained absolute liberty —

Norman Dorsen:

That is correct.

Potter Stewart:

It’s liberty that cannot be taken away without due process of law.

Norman Dorsen:

That is correct and if our position more explicitly Mr. Justice Stewart, is that if there is — if there were a compelling state interest, which the state could come forward with to justify a restriction on this fundamental right, you might have a different case.

Potter Stewart:

I don’t understand what the right derived under the constitution?

Norman Dorsen:

Well, the right comes from the liberty of the individual or for example, cases like Skinner in Oklahoma, specifically talked about the right to bear a child, Meyer in Nebraska discusses that, then of course there are other privacy cases, the Griswold case which at great length in three opinions on prevailing side, discuss of the right of privacy.

The position in other words, is a position based upon both the right of privacy and liberty of the woman.

Potter Stewart:

What this really have to do with the right of privacy?

Norman Dorsen:

Well I would suggest that —

Potter Stewart:

There is any constitutional right to woman?

Norman Dorsen:

I would suggest that if a woman wishes to have to use of her body in a way which would mean disposing up the embryo that, that is a choice that she can make, and that the doctor in the exercise of his professional judgment can make upon her request without the intervention of the criminal law.

Potter Stewart:

It’s not then the right of mother, or to be a mother or not to be mother?

Norman Dorsen:

Well, it’s certainly related to that, but if in the more narrow sense, it’s the use of the woman’s body, which she has the domain over and which this court should protect.

Warren E. Burger:

You give any status there or a posture to right of the father?

Norman Dorsen:

I’ve given a great deal of thought to that and I reluctantly come to the conclusion that it’s the women’s right and not the father’s right.

That it is her body, and that she should have the right to make the awesome decision whether or not to bear a child.

Hugo L. Black:

Either the way that you’re also saying —

Norman Dorsen:

Yes.

Hugo L. Black:

— that she can delegate that right to a doctor?

Norman Dorsen:

Yes.

Hugo L. Black:

A constitutional right that she can delegate?

Norman Dorsen:

I would myself not use the word delegate, she could consult the physician.

Hugo L. Black:

That’s what we wouldn’t do.

Would the constitution allow you to say that a doctor had a right make a woman have an abortion?

Norman Dorsen:

I would not permit the doctor to make that judgment against the woman’s will.

She is the one who makes the decision, just as a client.

Hugo L. Black:

She can convey the right on him?

Norman Dorsen:

Yes, yes.

Hugo L. Black:

Constitutional right?

Norman Dorsen:

Yes.

Harry A. Blackmun:

Mr. Dorsen, does your argument about her right to do with her body what you have suggested, have as it’s ultimate conclusion, the right to commit suicide?

Norman Dorsen:

I’m not sure, I’m not sure.

I would be inclined to think it would, but I’m not sure.

Harry A. Blackmun:

So that the next step is a challenge to the statute which makes suicide —

Norman Dorsen:

There may well be such a statute.

I don’t think that this case even presents the same type of problem.

We’re not dealing here with the – a human being in the same sense as a suicide case suggests.

Harry A. Blackmun:

Well, it just seems to me your argument has this logical conclusion that if she can do this with the fetus, can she come in to the doctor and say saw off my right arm because I want it off and saw that off.

I really not – I am just asking.

Norman Dorsen:

Well, I think if the doctor is exercising medical judgment, if there is a disease situation, if there is a situation where he would feel that he should do it, I then would say that she could do so in unrestrained way.

Warren E. Burger:

But previously you have suggested that there need be no diseased condition, no other factor except the direction of the woman to authorize the abortion?

Norman Dorsen:

Well, that is correct.

Warren E. Burger:

Then why should it be different on amputating the arm?

She just doesn’t, she just —

Thurgood Marshall:

Just doesn’t want the arm.

Warren E. Burger:

She just wants to mutilate herself and she wants to do it in a safe sort of way?

Norman Dorsen:

Well, I do have problems with that, I do have problems with that.

Byron R. White:

Why do you have problems with that Mr. Dorsen if you’re not take the position?

Norman Dorsen:

Well, I take the position because the abortion is a well recognized medical operation and that the operation without any indication at all perhaps traces out the question.

I would —

Byron R. White:

Then I am talking — if you have the trouble with the arm, I think you would have trouble with the abortion, especially and a fortiori if you recall — and you even thought that the unborn child had some rights?

Norman Dorsen:

I don’t think that this court —

Byron R. White:

Certainly an arm doesn’t?

Norman Dorsen:

That’s right.

I might say in connection with the very point that’s been raised here that Mr. Justice Clark, now retired, in article in the Loyola Law Review, 2 Loyola Bar Review, dealt with the some of the same problems that are before the Court now and he concluded after discussing the issue, saying, I submit that until the time that life is present, the state could not interfere with the interruption of pregnancy through abortion performed in a hospital or under appropriate clinical conditions.

And he discusses the argument that amicus curiae supporting the government’s position here, take and concludes that their arguments are without foundation.

He discusses it at length and I won’t repeat his argument except to say one more —

Byron R. White:

You mean that there isn’t life?

Norman Dorsen:

That’s correct.

No, no.

What he says and I think I can quote the relevant passage very briefly Mr. Justice White, is that “to say that life is present at conception, is to give recognition to the potential rather than the actual.

The unfertilized egg has life and if fertilized it takes on human proportion, but the law deals in reality not obscurely, the known rather than the unknown.”

In other words his position is not that there is no life, but that this is not the way in which the Court should approach the problem.

That we do not know that people have different philosophical and theological attitudes towards this subject, but they should not be determinative once a decision is made by a woman.

Byron R. White:

It shouldn’t be determined on medical branch (ph)?

Norman Dorsen:

It should be determined on the medical branch (ph).

Hugo L. Black:

I see your brief relying on Griswold against Connecticut?

Norman Dorsen:

Yes Mr. Justice, among other cases, it does.

Hugo L. Black:

But I notice that it doesn’t have any page; that says passage.

What is that page?

Norman Dorsen:

No I’ve been prepared, but — I suppose it’s because it’s cited frequently in the brief almost every page, but I would like to go back in concluding.

I wouldn’t want to suggest that by dealing with the question, we’ve been discussing from the past ten minutes or so, if I want to get away from the precise issue that judge Gesell dealt with below.

Our contention is that this language is unconstitutionally vague, that it cannot be cured and that this Court should therefore affirm the judgment of the court below.

Warren E. Burger:

Thank you professor Dorsen.

Mr. Huntington.

Samuel Huntington:

At first I’d like to refer to the question of Mr. Justice Blackmun at the end of my argument that the question of rubella.

I think perhaps I was too hasty in my response to that question that that would not be grounds for an abortion.

I think that if there is a substantial chance that there maybe a defect in the fetus that it quite possibly be that psychiatric grounds would exist for justifying the abortion in that case.

Obviously, the prospect of the raising a deform trial would have a very definite traumatic effect on a woman and I think that would in the room of the psychiatrist to determine precisely what that effect would be.

Referring to the Professor Dorsen’s attacks on the vagueness issue and mainly that it’s interference with the exercise of professional judgment by doctors.

I would just like to emphasize the narrowness of our interpretation of the statute.

Samuel Huntington:

We don’t believe the doctor will be second guessed by a prosecutor or a jury.

We believe that if he in good faith determines that health grounds exist that that is the end of it.

I’d like to refer —

Hugo L. Black:

Isn’t that necessary, under the (Inaudible) statutes, is that a necessary construction?

Samuel Huntington:

I believe it is a possible construction and the logical construction which we are offering —

Hugo L. Black:

But is it necessary for health?

Samuel Huntington:

Necessary for health.

Hugo L. Black:

And the juror is not capable of determining that from evidence?

Samuel Huntington:

Well, we believe that a reasonable interpretation is that the word health is a medical test, in that if a doctor concludes in good faith that health grounds exist that that should be the end.

The sole question before the jury —

Hugo L. Black:

It’s rather an unusual criminal act to let the man charged with the crime to determine whether in good faith that crime ought to be performed?

Samuel Huntington:

Well, we don’t believe it would be a crime, provided that he exercises the judgment.

I just like to point that this statute is not — that the Government does not harass physicians with numerous indictments that this Court is going to be face with the flooded cases involving the physicians.

In the last ten years, I believe something like six or seven indictments have been — six or seven physicians have been prosecuted in the memory of the chief of the US Attorney, criminal division.

In none of those cases that did a doctor raise the defense of good faith.

The position of the Government is to go after doctors to limit the enforcement of the law against doctors who do not make medical judgment to perform abortion on demand.

Hugo L. Black:

And good faith?

Samuel Huntington:

On demand without making a determination in each instance that health grounds exist.

Hugo L. Black:

On any chance that you have leave if he thought it was was in good faith, usually.

Samuel Huntington:

If he thinks that it’s in good faith, then he is protected.

If he believes that the health grounds, that there is some complication that would raise a medical problem in carrying the pregnancy to term, or if he’s psychiatrist, if the psychiatrist concludes that the pregnancy will have a harmful effect to her — to the woman’s mental well being and they determine that in good faith —

Hugo L. Black:

Who determine it?

Samuel Huntington:

The psychiatrist or the doctor, those in medical tests and we believe that their judgment on that issue should be protected.

Hugo L. Black:

It seems to me that when you concede that I guess I — you have always conceded as the too ambiguous to be administered.

Samuel Huntington:

No, we believe that it can be administered against those who do not — for against people —

Hugo L. Black:

I can – how can they prove it, he said its in good faith and not judge to them out —

Samuel Huntington:

I think if a physician said it was in good faith and it was shown by the Government that at every single case where a woman requested an abortion, he performed it that that would place an issue his good faith in meeting the grounds of the statute.

Warren E. Burger:

But you don’t —

Thurgood Marshall:

For all you research have you found any instance where the doctor was acquitted?

Samuel Huntington:

A doctor was acquitted?

Thurgood Marshall:

Yes sir.

Samuel Huntington:

No, I’m afraid I’ve haven’t determined.

I haven’t read over the all cases to determine that Your Honor.

Well, that’s the case and if could well be.

Warren E. Burger:

When you speak of good faith you link that up with medical judgment, do you not, a medical judgment made in good faith, not good faith in the abstract?

Samuel Huntington:

Yes, a medical judgment made in good faith.

Thank you.

Warren E. Burger:

Very well.

Thank you, Mr. Huntington, Mr. Nellis, Mr. Dorsen.

The case is submitted.