Appellees Brief — United States v. Vuitch

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In THE

Supreme Court of the United

Octoser Term, 1970 ;

No. 84

Unrrep States oF AMERICA,

Appellant,

Vee

Mian M. Vourrcs, M.D.,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR MILAN M. VUITCH, M.D.

JosepH Srtnick

1511 K Street, N. W.

Washington, D. C. 20005

JosePH L. NELLIS

1819 H Street, N. W.

Washington, D. C. 20006

Roy Lucas

Four Patchin Place

New York, New York 10011

Attorneys for Milan M. Vuitch, M.D.

INDEX

PAGE

Questions Presented 1

Statement of the Case 3

ARGUMENT :

Jurisdiction 7

I This Court Has Jurisdiction Under 18 U.S.C.

§3731 to Entertain a Direct Appeal From a

Decision of the United States District Court

for the District of Columbia Dismissing an In-

dictment on the Ground of the Invalidity of the

Statute on Which the Indictment Is Founded,

Where the Statute, Although an Act of Con-

gress, Applies Only in the District of Columbia 7

Il. The District Court’s Decision in This Case

Could Have Been Taken to the United States

Court of Appeals for the District of Columbia

Pursuant to D.C. Code §23-105, but This Court

Should Not Decline Jurisdiction Under 18

U.S.C. §3731, Because to Do So Would Over-

turn an Express Decision by One Codrdinate

Branch of the Federal Government—the Ex-

ecutive—to Avail Itself of a Statutory Alter-

native Expressly Provided by a Second Co-

érdinate Branch of Federal Government—the

Congress—Based Solely Upon a Construction

PAGE

of 18 U.S.C. §8731 Which Is at Best Implicit

in the Statute’s Language

Scope of Review

III. Disposition of This Appeal on the Merits

Should Include Consideration of the Constitu-

tional Claims Raised by the Motion to Dismiss,

Supported by Briefs and Argument, and Con-

sidered by the District Court, Although Not

Fully Ruled Upon, Because Remand for Trial

Would Not Materially Advance the Inquiry on

Those Points

The Merits

IV. D.C. Code. §22-201, Which Forbids a Physi-

cian to Perform a Therapeutic Abortion Un-

less “Necessary for the Preservation of the

Mother’s Life or Health” Is Unconstitutionally

Vague and Indefinite, on Its Face and as Ap-

plied, Because the Statute Provides a Wholly

Inadequate Warning to the Physician, Jury,

and Judge of Which Physical, Mental, or So-

cial Conditions May Be Taken Into Considera-

tion When Assessing Necessity

A. The District Court’s Decision Properly Ac-

corded Dr. Vuitch Standing to Challenge

the Statute on Its Face

B. The Statute Is Facially Invalid Because

There Are No Substantial Classes of Situa-

tions to Which Its Terms Could Apply

Without Objectionable Vagueness

C. The Statutory Construction Suggested by

the Government Would Increase the Uncer-

tainty of Coverage, and Render the Statute

Meaningless to an Extent Beyond Any Pos-

sible Coverage Supported. by Legislative

History 25

D.C. Code §22-201, as Applied to Impose Upon

a Physician the Burden of Proof That an Abor-

tion Was “Necessary for the Preservation of

the Mother’s Life or Health,” Deprives Physi-

cians of Liberty Without Due Process of Law

by Eroding the Presumption of Innocence and

Invading the Privilege Against Self-Incrimina-

tion 28

D.C. Code §22-201 Deprives Physicians and

Their Patients of Rights Protected by the First,

Fourth, Fifth, and Ninth Amendments, and Is

Void by Reason of Overbreadth, Because

Neither Narrowly Drawn Nor Supported by

Any Compelling or Legitimate Governmental

Interests 34

A. The Rights to Give and Receive Medical

Advice and Treatment 38

B. The Rights of Marital and Personal Privacy +e

C. The Right of a Woman to Choose Whether

and When to Bear Children 44

D. The Fifth Amendment Due Process Right

of a Presently “Healthy” Woman to Equal

Access to a Therapeutic Abortion on the

Same Terms as a Presently “Unhealthy”

Woman 46

E. Insufficiency of Governmental Interests ......

1. Interests Discernible From Legislative

and Common Law History ai

2. The Statutes Is Not a Rational Public

Health Measure in 1970

3. The Statute Is Not Rationally Related

to Any Legitimate Government Policy

on Control of Human Sexual Behavior ..

4. The Statute Is Not Designed to Equate

the Early Products of Conception we

' Human Persons

TaBLeE or AUTHORITIES

Cases:

Adamson v. California, 332 U.S. 46 (1947) ......... hoki

Application of the President and Directors of George-

town College, Inc., 331 F.2d 1010 (D.C. Cir.) (en

banc), cert. denied, 377 U.S. 978 (1964) ............. ascites

Aptheker v. Secretary of State, 378 U.S. 500 (1964) ... 52

Ashton v. Kentucky, 384 U.S. 195 (1966) .................... If

Baird v. Eisenstadt, —— F.2d ——, No. 7578 (1st Cir.

July 6, 1970) 3

Bolling v. Sharpe, 347 U.S. 497 (1954) 4]

Boyd v. United States, 271 U.S. 104 (1926) ............20,21

Brotherhood of Railway Trainmen v. Virginia, 377

U.S. 1 (1964)

PAGE

Gatenis v. Belous, 71 Cal.2d ——, 458 P.2d.194, 80

Cal. Bptr. 354 (Sept. 5, 1969), cert. denied, 397

U8. 915 (1970) passim

Connally v. General Construction Co., 269 U.S. 385

(1926) 16

Crichton v. United States, 92 F.2d 224 (D.C. Cir.),

cert. denied, 302 U.S. 707 (1937) 3

Dandridge v. Williams, 397 U.S. 471 (1970) -........ 12, 53

Day-Brite Lighting, Inc. v. Missouri, 542 U.S. 421

(1952) 51

Deutch v. United States, 367 U.S. 456 (1961) ............. 31

Doe v. Bolton, —— F. Supp. ——, Civ. No. 13676 ;

(N.D. Ga. July 31, 1970) (per envietia cipmasiiinbasilig aly Oe

Evans v. People, 49 N.Y. 86 (1872) 60

"Ferguson v. Skrupa, 372 U.S. 726 (1963) ....-._ 50

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ............ 17

Griswold v. Connecticut, 381 U.S. 479 (1965) -....-.passim

Hall v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y. 1969),

dismissed as moot, Op. No. 36936 (S.D.N.Y. July 1,

1970) (per curiam) 15, 50

Hunter v. Wheate, 53 App. D.C. 206 (D.C. Cir.), 289

Fed. 604 (1923) 30, 60

Jacobson v. Massachusetts, 197 U.S. 11 (1904) ............... 45

King v. Smith, 392 U.S. 309 (1968) 66

lanzetta v. New Jersey, 306 U.S. 451 (1939) ............ 17

Leary v. United States, 395 U.S. 6 (1969) -....-..-----rv-0- 6, 32

Page

Linder v. United States, 268 U.S. 5 (1925) —.............20,

Lochner v. New York, 198 U.S. 45 (1905) 22.2... ag

Loving v. Virginia, 388: U.S. 1 (1967) ............... 5,42 Mi

LSCRRC v. Wadmond, 299 F. Supp. 117 (8.D.N.Y,"

1969) y

Marchetti v. United States, 390 U.S. 39 (1968) 00.

McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis.) (per

curiam), appeal docketed, 38 U.S.L.W. 3524 (U.S. ~

June 20, 1970) (No. 297, Oct. 1970 Term) ....11, 13, 48, 64

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 4

Meyer v. Nebraska, 262 U.S. 390 (1923) 43

Musser v. Utah, 333 U.S. 95 (1948) ks

NAACP v. Alabama, 357 U.S. 449 (1958) -........... mee” Fy

NAACP v. Alabama, 377 U.S. 288 (1964) ................ 58

NAACP v. Button, 371 U.S. 415 (1963) ..............17, 34,9

Olmstead v. United States, 277 U.S. 438 (1928) 55

Peckham v: United States, 226 F.2d 34 (D.C. Cir),

cert. denied, 350 U.S. 912 (1955) 5

Phillips v. Borough of Folcroft, 305 F. Supp. 766 (E.D.

Pa. 1969) 4

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........48,45

Planned Parenthood Ass’n of Phoenix v. Nelson, Civ.

No. 70-334 PHX (D. Ariz. Aug. 24, 1970) (per

. curiam) -

Poe v. Ullman, 367 U.S. 497 (1961) wh

Roe v. Wade, —— F. Supp. ——, Civ. No. 3-3690-B _

(N.D. Tex. June 17, 1970) (per curiam) ........11, 13, 35,49

wh, \

PAGE

Schneider v. Rusk, 377 U.S. 163 (1964) 47

Shapiro v. Thompson, 394 U.S. 618 (1969) ............_ 47

Shively v. Board of Medical Examiners, No. 590333

(Calif. Super. Ct., San Fran. County Sept. 24, 1968)

(not reported), on remand from 65 Cal.2d 475, 421

P.2d 65, 55 Cal. Rptr. 217 (1968) 48

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

(1942) 42, 48

Stanley v. Georgia, 394 U.S. 557 (1969)

State v. Cooper, 22 N.J.L. (2 Zab.) 52, 51 Am. Dec.

248 (1849)

State v. Gedicke, 43 N.J.L. (14 Vroom) 86 (Sup. Ct.

1881)

State v. Murphy, 27 N.J.L. (3 Dutcher) 112 (Sup. Ct.

1858)

Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968) (en

- bane)

Sturgis v. Attorney General, 260 N.E.2d 687 (Mass.

1970)

Terry v. Ohio, 392 U.S. 1 (1968)

Union Pac. Ry. v. Botsford, 141 U.S. 250 (1891) ........

United Mine Workers v. Illinois State Bar, 389 U.S.

217 (1967)

- United States v. Boyd, 305 F. Supp. 1032 (D.D.C.

1969)

United States v. Evans, 333 U.S. 483 (1948) ................

United States v. Freund, 290 Fed. 411 (D. Mont. 1923)

United States v. Gainey, 380 U.S. 63 (1965) .............. M4

United States v. Guest, 383 U.S. 745 (1966) ............

United States v. May, 2 MacArthur (9 D.C.) 512 (1876)

62 & & KR SF BB KR B

SBRaBr-

viii

PAGE

United States v. O’Brien, 391 U.S. 367 (1968)...

United States v. Reese, 92 U.S. 214 (1875) ws

United States v. Sweet, 399 U.S. 517 (1970) (per «

curiam) 8

United States ex rel. Williams v. Follette, 313 F. Supp.

269 (S.D.N.Y. May 12, 1970) 49

Williams v. United States, 78 U.S. App. D.C. 147, 138

F.2d 81 (1943) 3, 5, 24, 28, 29,

81, 32, 62

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) ........ %&

Constitutional Provisions :

United States Constitution—

First Amendment of

Fourth Amendment 34

Fifth Amendment 4, 5, 6, 30, 32, 34, 47

Eighth Amendment . e

Ninth Amendment 34, 49, 50, 56

Fourteenth Amendment 47, 48

Federal Statutes:

18 U.S.C. $3731 (1964 ed.) 7,9

Harrison Narcotic Law, 38 Stat. 785, as amended, 40

Stat. 1130 21

State Statutes:

Ala. Code tit. 14, §9 (Recomp. 1958) 9

D.C. Code §2-123 15

D.C. Code §22-201 15, 22, 59

PAGE

D.C. Code §23-105 8

D.C. Code §809, $1 Stat. 1322 (1901) 59

Ma. Code Ann. art. 43, §149(E)-(G) (Supp. 1970)... 9

Ma. Code Ann. ch. 179, §2 (1868) 59

4A Minn. Stat. Ann. §617.18 (1964) 9

[1970], N.Y. Laws ch. 127, amending N.Y. Penal Law

§125.05(3) (McKinney 1967) , 9, 37

9A Texas Penal Code art. 1196 (1961) 9

Other Authorities :

Abert, Compiled Statutes in Force in the District of

Columbia ch. XVII, $§13-15 (1894) 59

Aigler, Legislation in Vague or General Terms, 21

Mion. L. Rev. 831 (1923) 16

Amsterdam, The Void for Vagueness Doctrine, 109 U.

Pa. L. Rev. 67 (1960) 16

Arey, Developmental Anatomy (Reference Table of

Correlated Human Development) (1965 ed.) .......... . 59

Bates & Zawadzki, Criminal Abortion (1964) .............. 62

Beaney, The Griswold Case and the Expanding Right

to Privacy, 1966 Wis. L. Rev. 979 oa

Calderone (ed.), Abortion in the United States

(1958) 18, 36

Clark, Religion, Mortality and Abortion: A Constitu-

tional Appraisal, 2 Loyota Univ. (L.A.) L. Rev. 1

(1969) 18, 42, 69

Collings, Unconstitutional Uncertainty—An Appraisal,

40 Corn. L.Q. 195 (1955) 16

Constitution of the World Health Organization, in

Basic DocuMENTS OF THE WorLD HEatTH OrGANIza-

tion 1 (Geneva 1969 ed.) 20

PAGE

Douglas, Toxic Effects of the Welch Bacillus in Posts. %&

abortal Infections, 56 N.Y. Stare J. Mun. 3673 (1956) .@2

Eastman & Hellman, Williams Obstetrics (13th ed. ~

1966) 36

Ehrlich & Ehrlich, Population Resources Environment ._

(1970) FE

Emerson, Nine Justices in Search of a Doctrine, 64 _

Micx. L. Rev. 219 (1965) 2)

Franklin, The Ninth Amendment, 40 Tur. L. Rev. 487.

(1966) 40, 56

Freund, The Use of Indefinite Terms in Statutes, 30.

Yaz L.J. 437 (1921) 16

Gebhard, et al., Pregnancy, Birth and Abortion —

(1958) 36, 66

George, Current Abortion Laws: Proposals and Move-

ments for Reform, 17 W. Rezs. L. Rev. 371 (1966)

37, 60

Gross, The Concept of Privacy, 42 N.Y.U. L. Rev. 34 _

(1967) 4

Guttmacher, Therapeutic Abortion: The Doctor’s

Dilemma, 21 J. Mt. Sovar Hosp. 111 (1954) -... 19

Haagensen & Lloyd, A Hundred Years of Medicine

(1943) él

Hall, Abortion in American Hospitals, 57 Am. J. Pus.

Heatrx 1933 (1967) 19, 64

Hall, Commentary in AporTion anD THE Law 228 (D.

Smith ed. 1967) 62

Hardin, History and Future of Birth Control, 10 Pxs- -

SPECTIVES IN Brotocy & Mep. 1 (1966) 36

PAGE

Inman & Vessey, Investigation of Deaths from Pul-

monary and Cerebral Thrombosis and Embolism in

Women of Child-bearing Age, 2 Burr. Men. J. 193

(1968) 23

13 J.A.M.A. 1242 (Aug. 24, 1970) -. ae |

Kauper, Penumbras, Peripheries, Emanations, Things

Fundamental and Things Forgotten: The Griswold

Case, 64 Micu. L. Rev. 235 (1965) 58

Kleegman & Kaufman, Infertility in Women (1966) 64

Lucas, Laws of the United States, I AnorTion IN A

Cuancinc Wort 127 (R. Hall ed. 1970) ................37, 60

Margolis & Overstreet, Legal Abortion Without

Hospitalization, 36 Ost. & Gynec. 479 (1970) ....... 23

Means, The Law of New York Concerning Abortion

and the Status of the Foetus, 1664-1968: A Case of

Cessation of Constitutionality, 14 N.Y.L.F. 411

(1968) 60

Model Penal Code, §230.3(2) (Proposed Official Draft,

1962) oe ty

Modern Medicine, Nov. 3, 1969 22

Note, 62 Harv. L. Rev. 77 (1948) 16

Note, The Supreme Court—1964 Term, 79 Hanv. L.

Rev. 56 (1965) HH

Note, The Uncertain Renaissance of the Ninth Amend-

ment, 33 U. Cut. L. Rev. 814 (1966) 40, 56

Packer & Gampell, Therapeutic Abortion: A Problem

in Law and Medicine, 11 Stan. L. Rev. 417 (1959) ... 19

Redlich, Are There “Certain Rights . . . Retained by

the People?,” 37 N.Y.U. L. Rev. 787 (1962) ............... 56

Regine, A Study of Pregnancy Wastage, 13 Musayx .

Mem. Funp Quart. No. 4 (1935) &

Robb, Aseptic Surgical Technique With Especial

Reference to Gynaecological Operations (1875) .. §

Ryan, Humane Abortion Laws and the Health Needs

of Society, 17 W. Res. L. Rev. 424 (1965) 20. &

Sutherland, Privacy in Connecticut, 64 Mich. L. Rey.

283 (1965) 58

Sympostum—Comments on the Griswold Case, 64

Mic. L. Rev. 197 (1965) 40, 56

Taussig, Abortion: Spontaneous and Induced (1936)..36, &

Tietze, Abortion in Europe, 57 Am. J. Pus. Heatta

1923 (1967) 22-8

Tietze, Abortion Laws and Abortion Practices in

Europe, Excerpta Mepica INTERNATIONAL Concrss,

Series No. 207 (Apr. 1969) te

Tietze & Lewit, Abortion, 220 Sorentiric American 3

(Jan. 1969) 8

Tietze, Clinical Effectiveness of Contraceptive Meth-

ods, 78 Am. J. Osst. & Gynec. 650 (1959) .......

Tietze, Maternal Mortality Associated With Legal

Abortion, Proceedings of the Fifth International

Conference on Planned Parenthood (Oct. 1955)

(Tokyo) 18

Tietze, Mortality With Contraception and Induced

Abortion, 45 Sruptes 1x Famity Piannine 6 (1969) . 2

Uniform Abortion Act (2d Tent. Draft Aug. 1970) .. 9

U.S. Bureau or THE Census: Statistical Abstract of the

United States: 1969, Table 59 (90th ed. 1969) _... 3

—-

In THE

Supreme Court of the United States

Ocroser Tzrm, 1970

No. 84

Unrrep States or AMERICA,

Appellant,

—vV =—_

Muuan M. Vurtos, M.D.,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

espe

BRIEF FOR MILAN M. VUITCH, M.D.

Questions Presented

I. Whether This Court Has Jurisdiction Under 18 U.S.C.

§3731 to Entertain a Direct Appeal From a Decision

of the United States District Court for the District of

Columbia Dismissing an Indictment on the Ground

of the Invalidity of the Statute on Which the Indict-

ment Is Founded, Where the Statute Is an Act of

Congress, but Applies Only in the District of Colum-

bia.

Ili. Whether Disposition of This Appeal on the Merits

IV. Whether D.C. Code $22-201, Which Forbids a Physi-

a a

wer

2 ; A

cay

II. Whether This Court Should Decline Jurisdiction Jp.

der 18 U.S.C. §3751, Where the District Court’s De.

cision in This Case Could Have Been Taken to the

United States Court of Appeals for the District of

Columbia Pursuant to D.C. Code §23-105, When to Do

So Would Overturn an Express Decision by One (o

érdinate Branch of the Federal Government—th

Executive—to Avail Itself of a Statutory Alternative

Expressly Provided by a Second Coérdinate Brand

of the Federal Government—the Congress—Base

Solely Upon a Construction of 18 U.S.C. §3731 Whiad

Is at Best Implicit in the Statute’s Language.

Should Include Consideration of the Constitutional

Claims Raised by the Motion to Dismiss, Supported

by Briefs and Argument, and Considered by the Dis.

trict Court, Although Not Fully Ruled Upon, Where

Remand for Trial Would Not Materially Advance the

Inquiry on Those Points.

cian to Perform a Therapeutic Abortion Unless “Nee

essary for the Preservation of the Mother’s Life or

Health” Is Unconstitutionally Vague and Indefinite,

on Its Face and as Applied, Where the Statute Pro

vides a Wholly Inadequate Warning to the Physician,

Jury, and Judge of Which Physical, Mental, or Social _

Conditions May Be Taken into Consideration When

Assessing Necessity.

Y. Whether D.C. Code $22-201, as Applied to Impose

Upon a Physician the Burden of Proof That an Abor-

tion Was “Necessary for the Preservation of the

Mother’s Life or Health,” Deprives Physicians of

Liberty Without Due Process of Law by Eroding the

Presumption of Innocence and Invading the Privilege

Against Self-Incrimination.

VL Whether D.C. Code §22-201 Deprives Physicians and

Their Patients of Rights Protected by the First,

Fourth, Fifth, and Ninth Amendments, and Is Void

by Reason of Overbreadth, Where the Statute Is

Neither Narrowly Drawn nor Supported by any Com-

pelling or Legitimate Governmental Interests.

Statement of the Case

Appellee Milan M. Vuitch, M.D., a licensed and prac-

ticing physician in the District of Columbia, was charged

by indictment (App. at 2, 3) with two alleged violations

of D.C. Cong §22-201, a statute of 1901 vintage.’ Dr. Vuitch

moved before trial to dismiss both indictments on the fol-

lowing grounds:

“1, The statute .. . under which the indictment is

brought is unconstitutional on its face and as applied

to him.

1The indictments charged that Dr. Vuitch had produced abor-

tions upon two patients, one on February 1, 1968, the other on

May 1, 1968. Neither indictment averred that the abortions were

not “necessary for the preservation of the [woman’s] life or

health... .” D.C. Cops §22-201. The absence of such averment

itself a be fatal to the indictments, as implied Williams v.

United States, 188 F.2d 81 (D.C. Cir. 1943); and Crichton v.

mane” 92 F.2d 224, 225 (D.C. Cir.), cert. denied, 302 U.S.

“2. The language of the statute as applied r

physician is vague. &

“3. The statute interferes with the physicians

tient relationship.

“4, The statute unconstitutionally restricts tha pe

tient’s right of privacy and freedom of choice...

(App. at 4).

The motion to dismiss, filed October 15, 1960, relied in large

part upon the arguments set out in California v. Beloug}

a decision of special relevance handed down only six weeks

earlier by the Supreme Court of California.

After the receipt of extensive briefs, and oral argument,

the district court, Gesell, J., granted the motion and dis

missed the indictments against Dr. Vuitch.* Judge Gesdl

addressed himself to three major contentions urged by Dr.

Vuitch, but based the decision on the principal grou

that the statute as interpreted was unconstitutionally vague

and indefinite, in violation of the due process clause of

the Fifth Amendment. 305 F. Supp. at 1034.

The district court recognized that

“the motions attack the statute for vagueness, allege

that its practical operation denies equal protection to

certain economic and other groups .. . and asserta

constitutional right of all women . . . to determine

whether or not they shall bear a child.” 305 F. Supp.

at 1033.

271 Cal.2d ——, 458 P.2d 194, 80 Cal. Rptr. 354 (Sept. 5,

1969), cert. denied, 397 U.S. 915 (1970).

* A companion case, United States v. Boyd, 305 F. Supp. 1032,

1035-36 (D.D.C. 1969) (not appealed), went the other way, Boyd,

a non-physician, had been charged with performing abortions.

Moreover, there was no need for extended hearings and

testimony because “the materials cited in the briefs . . .

are of such common understanding ... .” 305 F. Supp.

at 1033.

Relying for the most part upon his conclusion that the

statute was too vague, Judge Gesell nonetheless agreed

that “the statute unquestionably impinges to an appre-

ciable extent on significant constitutional rights of individ-

uals.” 305 F. Supp. at 1034. Reliance was placed on de-

cisions by this Court such as Griswold v. Conmecticut* and

Loving v. Virginia.’ These decisions were

“gn increasing indication ... that as a secular matter

a woman’s liberty and right of privacy extends to

family, marriage and sex matters and may well in-

clude the right to remove an unwanted child at least

in early stages of pregnancy.” 305 F. Supp. at 1035.

In addition, decisions by the United States Court of

Appeals for the District of Columbia were seen to raise

grave questions under the Fifth Amendment with respect

to the presumption of innocence and the privilege against

self-incrimination.* Those decisions held that

4381 U.S. 479 (1965). Griswold recognized as against state

section, “a right of privacy older than the Bill of Rights—older

than our political parties... .” 381 U.S. at 486, and extended

constitutional protection to “the traditional relation of the family

—a relation as old and as fundamental as our entire civiliza-

tion ....” 381 U.S. at 496 (Goldberg, J., concurring).

5388 U.S. 1 (1967).

*Peckham v. United States, 226 F.2d 34 (D.C. Cir.) (per

curiam), cert. denied, 350 U.S. 912 (1955); and Willams v.

United States, 138 F.2d 81 (D.C. Cir. 1943), were cited as ex-

amples. Only Williams, however, actually decided the point.

Peckham held that proof of pregnancy was irrelevant to com-

mission of the offense.

“upon the Government establishing that a physiciaa

committed an abortion, the burden shifted to the Phy.

sician to justify his acts. In other words, he is pre.

sumed guilty and remains so unless a jury can be

persuaded that his acts were necessary for the preser.

vation of the woman’s life or health.” 305 F. Supp

at 1034.

Since the Government’s establishing of an abortion could

not per se justify a verdict of illegal abortion, Judge

Gesell thought the Circuit Court’s holdings “may well of.

fend the Fifth Amendment .. . as interpreted in recent

decisions such as Leary v. United States,” and United

States v. Gainey.” * Nonetheless, while recognizing poten.

tial merit in other points argued to the Court, Judge

Gesell decided the case upon the principal ground that

the statute was riddled with multifold uncertainties that

could not be remedied. Hence, the statute was void for

vagueness, and in violation of the due process clause of

the Fifth Amendment.

In light of the above, it is clear that Dr. Vuitch raised

the full range of constitutional questions. This was e.-

pressly done both in the motion to dismiss the indictment,

and in reliance upon California v. Belous, supra. More

over, the district court fully considered all questions, al-

though deciding only one. Thus, it is incorrect to suggest

that “several broad constitutional issues were presented

to the court below by an amicus curiae... .” Brief for

the United States, at 8; id. at 22-23. Moreover, the Ap

pellants are incorrect in stating that California v. Belous,

7395 U.S. 6 (1969).

* 380 U.S. 63. (1965).

supra, rested solely on vagueness grounds. Brief for the

United States, at 5 n. 3. Even a cursory reading of Belous

shows that several presumptively definite constructions of

the California anti-abortion law were rejected because they

would infringe a “fundamental right of the woman to

choose whether to bear children... .”* Belous was by no

means limited to vagueness.

ARGUMENT

Jurisdiction

This Court Has Jurisdiction Under 18 U.S.C. §3731

to Entertain a Direct Appeal From a Decision of the

United States District Court for the District of Columbia

Dismissing an Indictment on the Ground of the Invalid-

ity of the Statute on Which the Indictment Is Founded,

Where the Statute, Although an Act of Congress, Applies

Only in the District of Columbia.

Dr. Vuitch does not contest the jurisdiction of this

Court over a direct appeal such as the present. The

language, legislative history, and decisions construing 18

US.C. §3731 (1964 ed.), all point to one conclusion. At

its option, the United States may appeal directly to this

Court from a decision of the United States District Court

for the District of Columbia dismissing an indictment

based upon an unconstitutional statute, where the statute,

although an Act of Congress, applies only in the District

of Columbia. _

*71 Cal.2d at ——, 458 P.2d at 199, 80 Cal. Rptr. at 359.

K Fi

“ee

The Supplemental Memorandum of Appellee, Supple.

mental Memorandum for the United States, and Brief fi,

the United States, at 10-16, fully elaborate the jurisdis

tional point. Dr. Vuitch does not disagree with the gp.

clusion. Moreover, no further supporting authorities -

been found.

Il.

The District Court’s Decision in This Case Could Haye

Been Taken to the United States Court of Appeals for

the District of Columbia Pursuant to D.C. Code §23-105,

but This Court Should Not Decline Jurisdiction Under

18 U.S.C. §3731, Because to Do So Would Overturn m

Express Decision by One Coérdinate Branch of the

Federal Government—the Executive—to Avail Itself of

a Statutory Alternative Expressly Provided by a Second

Coérdinate Branch of Federal Government—the Cop.

grese—Based Solely Upon a Construction of 18 USC

§3731 Which Is at Best Implicit in the Statute’s Lan

guage.

The existence of D.C. Cope $23-105 raises the possibility

that the United States might have an option to appeal a

case such as the present one to the United States Court

of Appeals for the District of Columbia. In exercising —

that option, the United States presumably would make an

executive determination that the case lacked sufficient na-

tional import to warrant a direct appeal here. Appeal

would then be taken pursuant to D.C. Cope 4$23-105, as

was done in United States v. Sweet, 399 U.S. 517 (1970)

(per curiam). And, as Sweet holds, this Court would re

spect the executive determination authorized by Congress

in $23-105.

A similar need to respect the determinations of the

Executive and Congress underlies the present procedural

ion. Acts of Congress, although frequently confined

to the District of Columbia, often relate to questions of

tremendous national concern. Indeed, with respect to crim-

inal law and procedure, such Acts may be designed as

models for the fifty states. While the present criminal

statute permits abortion to preserve both the woman’s

“ife” and “health,” and is therefore unlike any state abor-

tion law other than that in Alabama,” Dr. Vuitch claims

that such a restriction is not only vague, but overbroad,

in that its potential sweep drastically invades matters left

by the Constitution to the private decision of the pregnant

woman, other members of her family, and her physician.

This claim of overbreadth entails implications for the

abortion laws of the forty-seven states which, unlike New

York, Alaska, and Hawaii, still consider the outcome of

an unwanted pregnancy to be a matter between a majority

of legislators and the physician and/or pregnant woman.

Assuming, then, that 18 U.S.C. $3731 (1964 ed.), need

not always be utilized by the Executive, the present case

” See Aus. Cove tit. 14, §9 (Recomp. 1958) (“unless the [abor-

tion] is necessary to preserve her life or health . . . .”). Twenty-

nine states exclude preservation of “health.” E.g., 40A Muyn.

§rar. ANN. §617.18 (1964); 2A Texas Penat Cope art. 1196

(1961). Twelve states, following Move, PENAL Cope §230.3(2)

(Proposed Official Draft, 1962), permit abortions in accredited

hospitals for reasons of physical and/or mental health. E.g., Mo.

Copz ANN. art. 43, §149(E)-(G) (Supp. 1970) (“substantial risk

that continuation of the pregnancy would gravely impair the

physical or mental health of the {[woman]....”). In 1970, three

states enacted legislation—New York, Alaska, and Hawaii—alo

lines subsequently embodied in the Unirorm Asortion Act (2d

Tent. Draft Aug. 1970), which leave the reasons for abortion up

to the physician and patient. E.g., [1970], N.Y. Laws ch. 127,

at 170, amending N.Y. Pena Law §125.05(3) (McKinney 1967).

is one in which the option has been exercised. Dr. Vuite

agrees that the course of appeal has been designated by

Congress, subject to certain Executive options, and that

this Court lacks discretionary authority to overturn the

considered judgment of the other departments of govern.

ment by rejecting the appeal.

Scope of Review

Ill.

Disposition of This Appeal on the Merits Should i.

clude Consideration of the Constitutional Claims Raised

by the Motion to Dismiss, Supported by Briefs and

Argument, and Considered by the District Court,

Although Not Fully Ruled Upon, Because Remand for

Trial Would Not Materially Advance the Inquiry on

Those Points. ’

The Brief of the United States, at 22-26, asks this Court

to resolve only the vagueness point, which was central to

the disposition below. As Dr. Vuitch has pointed ont,

however, additional constitutional arguments were raised

below, briefed, argued, and examined by the district court.

The Government would ask that this litigation be carried

out in piecemeal fashion, with each issue litigated from

the district court to this Court, in sequence, until all

procedural and substantive points had been fully adjudi-

cated by all judges in each possible forum. Remand for

further hearings, however, would not materially promote

the ultimate resolution of this case. This is the lesson

taught by the numerous lower courts that have passed on

the “overbreadth” claims raised herein.

California v. Belous” is a first example. In that case

the Supreme Court of California invalidated the pre-1967

California anti-abortion law as unduly vague and over-

broad. Dr. Belous had been tried and convicted of con-

spiracy to violate the anti-abortion statute. The trial,

however, was concerned with the facts of the offense, not

with factual background for the constitutional claims. In-

deed, none of the facts developed at the trial turned out

to have the least bearing upon the ultimate decision. The

decision relied upon recognized medical literature to bolster

its conclusions. A trial as to this factual background

would have been no more than an endless conflict between

competing experts from opposing camps. The conflict has

already been mooted in the medical journals at length and

in depth. It need not be inscribed into thousands of pages

of trial transcript to be brought to this Court’s attention.

Judge Gesell recognized below that “judicial notice”

could be taken “of the materials cited in the briefs.” 305

F. Supp. at 1033. Similar federal decisions, by statutory

three-judge courts, have recognized that the overbreadth

question is a matter of constitutional law. The restrictions

on abortion in Wisconsin,” Texas," and Georgia’ were all

examined and declared unconstitutionally overbroad with-

out the need for an extended trial. Dr. Vuitch has presented

17] Cal.2d ——, 458 P.2d 194, 80 Cal. Rptr. 354 (1969), cert.

denied, 397 U.S. 915 (1970).

McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis.) (per

curiam), appeal docketed, 38 U.S.L.W. 3524 (U.S. June 20, 1970)

(No. 297, Oct. 1970 Term).

8 Roe v. Wade, —— F. Supp. ——, Civ. No. 3-3690-B (N.D.

Tex. June 17, 1970) (per curiam).

% Doe v. Bolton, —— F. Supp. ——, Civ. No. 13676 (N.D. Ga.

July 31, 1970) (per curiam).

“=

the relevant medical literature in this Brief and the Motion,

to Affirm. There is no reason to remit the case for

in effect, would be a reargument of substantive Point

brought out fully below.

Dandridge v. Williams“ teaches the propriety of »

Appellee’s urging on appeal grounds for decision that wer

briefed and considered below, but not relied upon by the

lower court. As Mr. Justice Stewart stated :

“The prevailing party may, of course, assert in a review.

ing court any ground in support of his judgment,

whether or not that ground was relied upon or even

considered by the trial court... .

“The issue having been fully argued both here and in

the District Court, consideration of the [issue] is

appropriate.” 397 U.S. at 475 n. 6.

The Court in Dandridge sustained the Maryland maximum

grant regulation on both statutory and constitutional

grounds, the lower court having rested solely on the latter,

By the Government’s theory here, this Court in Dandridge,

having rejected the constitutional arguments, should have

remanded the case to the district court for an opinion on

the statutory construction claims. The Court’s more

sensible approach, however, avoids piecemeal litigation,

and resolves important public questions in a timely fashion.

Here, as in Dandridge, a substantive decision will directly

affect the lives of many thousands of people. Not only has

the lower court heard argument on the merits, but numerous

other district courts have resolved substantially similar

overbreadth claims.

46 397 U.S. 471 (1970).

The Merits

IV.

D.C. Code §22-201, Which Forbids a Physician to Per-

form a Therapeutic Abortion Unless “Necessary for the

of the Mother’s Life or Health” Is Uncon-

gitionally Vague and Indefinite, on Its Face and as Ap-

Because the Statute Provides a Wholly Inadequate

Warning to the Physician, Jury, and Judge of Which

Mental, or Social Conditions May Be Taken

into Consideration When Assessing Necessity.

A. The District Court’s Decision Properly Accorded Dr. Vuitch

Standing to Challenge the Statute on Its Face

The Government contests Judge Gesell’s decision to con-

sider Dr. Vuitch’s challenge to the District of Columbia

anti-abortion statute on its face, rather than as applied to

whatever facts might have developed at an evidentiary

hearing. In allowing the defense to attack the facial

validity of the statute, however, the lower court was not

only in accord with the three-judge federal court decisions

rendered in Wisconsin, Texas,” and Georgia,” but also

appears to have recognized that no substantial class of

instances exist to which the statute could be applied without

substantial post-offense reconstruction, and concomitant

lack of fair warning. Moreover, failure to consider the

statute on its face would have compounded the deterrence

of the entire class of physicians who suffer under the

16 McCann v. Babbitz, supra note 12.

1 Roe v. Wade, supra note 13.

8 Doe v. Bolton, supra note 14.

burden of a law with such significant posite t

prosecutorial abuse.

The substantive rights of individual liberty and vei

asserted by Dr. Vuitch follow from the recognition j a

Griswold v. Connecticut,” of “a right of privacy older tha

the Bill of Rights—older than our political parties . . :¥*

which surrounds with constitutional protection “the tradi.

tional relation of the family—a relation as old and rm

fundamental as our entire civilization ....”™" The on.

stitutional basis for these rights will es developed a

greater depth, infra, at pp. 34 to 69. For the present,

however, it is important to note the significance attached to

these rights by the Griswold decision. So important did

Griswold consider the right of privacy, that physicians had

standing to assert the right on behalf of “the married

people with whom they have a professional relationship.”

381 U.S. at 481. Following the Griswold rationale, Dr,

Vuitch should have standing to test the facial validity of the

statute, because it invades the privacy rights of that broad

class of patients, with infinitely variable physical and men.

tal “health” situations, who are prevented from obtaining

abortions because physicians generally fear prosecution.

One cannot conceal from judicial notice the general

inhibiting effect of the statute by pointing to an absence in

the record of evidence to that fact. Physicians in th

District of Columbia more often than not, for example, are

members of the American Medical Association. That

Association in June of this year called for an approach to

1° 381 U.S. 479 (1965).

2° 381 U.S. at 486.

#1 381 U.S. at 496 (Goldberg, J., concurring).

—

sbortion which would leave the decision.up to physician and

patient, after consultation, provided the abortion was per-

formed in an appropriate medical facility." This is evi-

dence of dissatisfaction with existing laws. Such dissatis-

faction derives from inability to practice sound medicine,

taking into consideration all of a patient’s health and

personal needs, when the physician’s definition of “health”

might not agree with that of a local prosecutor, or jury, and

the difference entails a possibility of being “imprisoned

in the penitentiary not less than one year or not more than

ten years... ,” D.C. Cove §22-201, as well as revocation of

the physician’s license to practice medicine, D.C. Cope

§2-123. In no other area of law’s relationship to medicine

must a physician work under such a drastic threat of

punishment.

Accordingly, it is not speculative to conclude that the

D.C. abortion law drastically inhibits the practice of

medicine, and the access of patients to this particular form

of medical treatment. If this were not so, the A.M.A. would

have no reason to adopt a policy position contrary to what

is presently allowed by law. Nor would leaders of the

medical profession have given their support to litigation

brought to contest similar laws in other jurisdictions. See

Brief of the Association of the Bar of the City of New York

and a Group of Physicians as Amici Curiae, at i-xi, Hall v.

Lefkowitz; Amicus Curiae Brief on Behalf of Medical

2 See N.Y. Times, June 26, 1970, at 1, col. 1. The text of the

official position has not yet been published in J.A.M.A., although

the Journal recently noted that only 26 physicians had resigned

‘am rt bod Spec of the new policy. See 213 J.A.M.A. 1242

ug. 1970).

#305 F. Supp. 1030 (S.D.N.Y. 1969), dismissed as moot, Op.

No. 36989 (S.D.N.Y. July 1, 1970) (per curiam) (statute repealed

three days before oral argument on merits).

School Deans and Others in Support of Appellant, *“

California v. Belous.**

In light of the constitutional stature of the rights asseriaj

by Dr. Vuitch, and the pervasive impact which the cha.

lenged statute invariably has upon the practice of medicine

the validity of the statute must be assessed on its face, not

by the piecemeal process of hammering out its permissible

contours on a case-by-case basis.

B. The Statute Is Facially Invalid Because There Are No Sub

stantial Classes of Situations to Which Its Terms Coal

Apply Without Objectionable Vagueness

The Legal Standard

A vast body of case law exists on the problem of une.

stitutional uncertainty.* This doctrine has, moreover, sey-

eral complementary, and several competing strands. The

test most frequently articulated has been that

“a statute which either forbids or requires the doing of

an act in terms so vague that men of common intelli.

gence must necessarily guess at its meaning and differ

as to its application, violates the first essential of due

process... .” *

*71 Cal.2d ——, 458 P.2d 194, 80 Cal. Rptr. 354 (1969), cert.

denied, 397 U.S. 915 (1970).

25 See generally Amsterdam, The Void for Vagueness Doctrim,

109 U. Pa. L. Rev. 67 (1960) ; Collings, Unconstitutional Us

certainty—An Appraisal, 40 Corn. L.Q. 195 (1955); Aigler,

Legislation in Vague or General Terms, 21 Micu. L. Rev. 831

(1923); Freund, The Use of Indefinite Terms in Statutes, 0

Yaz LJ. 437 (1921) ; Note, 62 Harv. L. Rev. 77 (1948).

26 Connally v. General Construction Co., 269 U.S. 385, 391

(1926).

This is partly because

«it would certainly be dangerous if the legislature could

set a net large enough to catch all possible offenders

and leave it to the courts to step inside and say who

could be rightfully detained and who should be set at

large.” 37

Clearly, “[vJague laws in any area suffer a constitutional

infirmity,” * be they of common law antiquity,” adminis-

trative,® or criminal." Furthermore, statutes challenged

for vagueness which impinge upon sensitive human rights

are to be closely scrutinized. Griswold v. Connecticut dealt

with “a right of privacy older than the Bill of Rights...”

and that right is invoked again here, as well as the right

to give medical advice, which is more nearly a facet of pure

freedom of speech. Thus, “[p]recision of regulation must

be the touchstone in an area so closely touching our most

precious freedoms.” *

This Court has never ruled on a vagueness challenge to

asimilar statute, but the invalidity of the language follows

United States v. Reese, 92 U.S. 214, 221 (1875).

* Ashton v. Kentucky, 384 U.S. 195, 200 (1966) (ancient com-

mon law offense of “criminal libel” void for uncertainty).

2» Lanzetta v. New Jersey, 306 U.S. 451, 454-55 (1939) ; Champ-

lin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 242-43

(1932). See also United States v. Evans, 333 U.S. 483 (1948), in

which the statute had been passed in 1917; and Giaccio v. Penn-

sywania, 382 U.S. 399 (1966), in which the statute had been

passed in 1860.

” See, e.g., Keyishian v. Regents, 385 U.S. 589 (1967).

1 Lanzetta v. New Jersey, 306 U.S. 451 (1939).

#2 381 U.S. 479, 486 (1965).

8% NAACP v. Button, 371 U.S. 415, 438 (1963).

from an analysis of the difficulties a physician must fay

in applying it.

Vagueness of the Statute in Practice

Both medical and legal commentary have recognized the

uncertainty of American abortion laws. Retired Justig.

Clark recently remarked :

“The increasing number of abortions subjects physi.

cians to increased dangers of liability for incorreetly

interpreting a statute .... [DJoctors face an uncer.

tain fate when performing an abortion. This uneer.

tainty will continue unless the legislatures or courts

provide relief from liability.” *

Christopher Tietze, M.D., perhaps internationally the

most knowledgeable authority on abortion practices and

statistics, commented

“The application of these laws, however, varies greatly

between localities and between hospitals.” *

Similarly, a 1967 study concluded:

“Abortion policies vary not only from hospital to hos-

pital but also from service to service within the same

“Tom C. Clark, Religion, Mortality, and Abortion: A Com

stitutional Appraisal, 2 Loyoua Univ. (L.A.) L. Rev. 1, 7 (1969)

(hereafter “Clark”)].

** Tietze, Maternal Mortality Associated With Legal Abortion,

i of the Fifth International Conference on Planned

Parenthood 24 (Oct. 1955) (Tokyo); see also M. CaLpEnons,

ABORTION IN THE Unrrep Srares 34-35, 52 (1958) :

“[N]ecessity as a sine qua non of performing an abortion ...

leaves the doctor’s position perilous and uncertain. * * * The

current laws provide no accurate criteria by which the doe

tor can govern his actions.”

hospital. They also vary widely from doctor to doctor

on the same service of the same hospital.” **

And, as Dr. Alan F'. Guttmacher indicated in an early study,

“(t]he doctor’s dilemma lies in the phrase ‘preserving the

life of the woman.’”*” If “preserving life” is a difficult

standard, then “preserving health” only accentuates the

“doctor’s dilemma.”

The medical profession has no experience in applying the

provisions of felony statutes to the day-to-day practice of

their science. It is not an offense to perform an appen-

dectomy far in advance of rupture, and when only neces-

sary to prevent a risk that might never materialize. Gen-

eral malpractice principles, which take all circumstances

into account, govern the physician’s everyday practice, not

the criminal law. Nor is an instance of malpractice per se

ever a cause for license revocation, much less criminal

prosecution, unless so serious, wanton, and reckless as to

constitute criminal negligence. While the physician’s pro-

fessional role is directed toward preserving a patient’s

health, that term is used in its broadest sense:

* Hall, Abortion in American Hospitals, 57 Am. J. Pus. HeauTa

1938, 1935 (1967). Dr. Hall continues:

“The victim of all this confusion is, of course, the American

female .. . [S]he must find Doctor X in hospital Y with

policy Z in order to have it done.” Id.

For a vivid illustration of the variations among hospitals in assess-

ing the legality of therapeutic abortion on a given set of facts,

see the questionnaire study and analysis of results in Packer &

Gampell, Therapeutic Abortion: A Problem in Law and Medicine,

ll Sran. L. Rev. 417, 423 (1959). The study is discussed and

relied on in California v. Belous, 71 Cal.2d ——, ——, 458 P.2d

194, 205 n. 14, 80 Cal. Rptr. 354, 365 n. 14 (1969).

* Guttmacher, Therapeutic Abortion: The Doctor’s Dilemma,

21 J. Mr. Snovar Hosp. 111 (1954).

“Health is a state of complete physical, mental ay

social well-being and not merely the absence of diseas

or infirmity.

“The enjoyment of the highest attainable standard of

health is one of the fundamental rights of every huma

being without distinction of race, religion, politic

belief, economic or social condition.” *

In no sphere of medicine other than abortion does

criminal statute impose such a burden upon a physician,

and in no other sphere of medical practice is treatment

restricted by criminal law to those instances in which it is

“necessary for the preservation of the mother’s life or

health.” The Court might consider the impact on the lives

of all citizens if a penal statute prohibited gall bladder

surgery, kidney stone removal, the prescription of contra

ceptives,” use of antibiotics, vaccination, or even the taking

of aspirin “unless necessary for the preservation of the

life or health” of the patient. There are and never have

been such laws or practices, outside of the quite different

realm of drug regulation. It is from this area that Appel.

lant has drawn Linder v. United States, 268 U.S. 5 (1925),

and Boyd v. United States, 271 U.S. 104 (1926), on which

great reliance was placed (J.S., at 7; Brief, at 36).

Tinder and Boyd involved the question of a physician's

dispensing “hard” narcotics (i.e., morphine and cocaine).

%8 Constitution of the World Health Organization, in Base

DocuMENTS OF THE WorLD HEALTH ORGANIZATION 1 (Geneva 1969

ed.).

%® Griswold v. Connecticut, 381 U.S. 479 (1965), at least implies

that such a requirement would violate the patient’s right of privacy,

but Connecticut, for obvious reasons, made no such contention.

The statute required that this be done “in the course of

his {the physician’s] professional practice only.” This

Court found in Linder that “[w]hat constitutes bona fide

medical practice must be determined upon consideration of

evidence and attending circumstances.” 268 U.S. at 18.

This was not a decision, as Appellant stated, that “the

statute was subject to an absolute defense of good faith

telief by the physician that the drugs were appropriate for

treatment of the addict” (J.S., at 7; Brief, at 36).

In several respects Linder and Boyd are inapposite and

inapplicable. Trafficking in hard narcotics is socially repre-

hensible conduct, for which statutory standards of specific-

ity need not be so stringent. Abortion, like contraception,

however, involves sensitive individual rights, see Griswold

y, Connecticut, 381 U.S. 479, 482 (1965), and most fre-

quently the “intimate relation of husband and wife and

their physician’s role in one aspect of that relation.” Pri-

vacy in family planning is today a value which government

promotes. Moreover, the problem of hard narcotics is sus-

ceptible to much sharper analysis than that of abortion.

One can separate out the physician who helps an addict

withdraw from one who feeds a habit for profit. With abor-

tion, however, there is no such line, and the statute has not

drawn an intelligible point of demarcation.

Many physicians consider a woman’s strong personal

desire not to be compelled to have further children, as suffi-

cient justification for abortion. A study conducted by the

journal Modern Medicine in fact showed that 51% of

American physicians, and 61.4% of physicians in the Dis-

trict of Columbia agreed without qualification that abor-

“ Harrison Narcotic Law, 38 Stat. 785, as amended, 40 Stat. 1130.

tion should be available to any woman capable of giving

legal consent upon her own request to a competent phys

cian." The sphere of medical judgment, in such a cay

then narrows to the question of whether medical reasoy

exist for not performing the requested abortion, a cireyp.

stance which is exceedingly rare (and unregulable by th

blunderbuss of a criminal statute) in this day when abor.

tion in early pregnancy is seven times safer than its alter.

native—childbirth.*

In fact, if one compares the relative safety of childbirth

and medically induced abortion in early stages of preg.

nancy, he will necessarily conclude that abortion in 4).

most all cases is “necessary for the preservation of the

[woman’s] life or health.” D.C. Copz §22-201. This is

the case because childbirth today carries a considerably

more significant risk to the woman’s survival than abor.

tion.

Tietze published a study in September of 1969 which

summarized the relevant data as follows:

“Mortdlity associated with legal abortion performed in

hospital, at an early stage of gestation: 3 deaths per

100,000 abortions... .”*

“1 Modern Medicine, Nov. 3, 1969, at 18-24. An additional 118%

nationally and 11.2% in the District agreed to the proposition,

but with some qualification.

* See Tietze, Mortality With Contraception and Induced Abor.

tion, 45 Srupres mx Famiuy Puannine 6 (1969).

** Tietze, Mortality With Contraception and Induced Abortion,

45 Srupres mv Famiy Puiannine 6 (1969) (emphasis in original).

For further substantiation of the safety of early abortion on healthy

women under appropriate medical conditions, see Tietze, Abortion

Laws and Abortion Practices in Europe (1969) ; Tietze, Abortion

“Maternal Mortality from complications of, or associ-

ated with, pregnancy, child-birth, and the puerperium,

excluding induced abortion: 20 deaths per 100,000

pregnancies.” “

* * * 7 7

“Mortality associated with highly effective contracep-

tion: 3 deaths per 100,000 users per year....”*

Moreover, physicians in states with liberalized practice

are increasingly discarding conventional concepts about

the need for hospitalization. A recent study by physicians

at the University of California, San Francisco, School of

Medicine showed relatively few complications following

therapeutic abortions done on an outpatient basis.“ The

researchers concluded that

“the conventional 12- to 48-hour hospital admission for

aspiration abortion patients serves no real purpose

either in preventing or discovering postabortal com-

plications.” *’

Accordingly, the conscientious physician who takes into

account the physical, mental, and personal needs of his

in Europe, 57 Am. J. Pus. Heavru 1923 (1967) ; Tietze & Lewit,

Abortion, 220 Scientific American 3 (Jan. 1969) ; Kolblova, Legal

Abortion in Czechoslovakia, 196 J.A.M.A. 371 (1966); Mehland,

Combatting Illegal Abortion in the Socialist Countries of Europe,

13 Wortp Mzp. J. 84 (1966).

“Id., based on the United States “rate of maternal mortality,

excluding abortion, [which] was 18 per 100,000 live births in

1964-66.” Id.

“Id., citing Inman & Vessey, Investigation of Deaths from

and Cerebral Thrombosis and Embolism in Women of

Child-bearing Age, 2 Burr. Mzp. J. 193 (1968).

“Margolis & Overstreet, Legal Abortion Without Hospitaliza-

tion, 36 Onst. & Gynec. 479 (1970).

“Td. at 481.

patient, faces an insoluble dilemma in construing thy

statute. It is hopelessly vague. There are “health” justif.

cations® for performing an abortion upon a “healthy”

patient, because continued pregnancy could lead to da.

gers in childbirth, as well as adverse consequences t

“health” brought about solely on account of her being

forced to bear a child against her will. A physician cay

never know how the prosecutor, grand jury, trial judge,

or jury of non-peer laymen will understand the tem

“health.” If medical men cannot agree on the contours of

the “health” concept, non-medical men are likely to in.

dulge in interpretations which range from a need to pro.

tect the patient’s immediate existence to the broader def.

nition set out by the World Health Organization.

Where the “intent” of Congress lies, no one can knoy,

Indeed, the Government has virtually conceded the facial

invalidity of the statute by recognizing the futility of any

construction cast in language other than that of the physi-

cian’s subjective intent. How, one might ask, can the physi-

cian intend that which cannot be defined? There is no

class of instances where abortion is plainly unnecessary*

** A 1943 decision delivered by then Associate Justice Arnold of

the Court of Appeals for this Circuit found that this provision of

the statute “is a broad exception without precise limits.” Wélliam

v. United States, 78 U.S. App. D.C. 147, 150, 138 F.2d 81, &

(1943). Compare Musser v. Utah, 333 U.S. 95, 97 (1948) (“acts

injurious to public morals” may include “almost any act which

judge and jury might find at the moment contrary to his or its

notions of what was good for health [ete.] ....”).

*° The statute also gives no indication as to which of the possible

meanings of “necessary” applies, nor the factors which may per-

missibly be taken into account. The judge and jury are i

to consider any factors they choose. A statute which permitted

only “necessary” noise was recently struck down by a district court |

in Pennsylvania. Phillips v. Borough of Folcroft, 305 F. Supp. 766

(E.D. Pa. 1969) (J. S. Lord, III, J.). This Court in Yu Cong Eng

v. Trinidad, 271 U.S. 500 (1926) (Taft, C.J.), has described the

_—s—llLr—lUGS

to achieve legitimate health objectives. The dangers of

childbirth to a woman who has an unwanted pregnancy

will always exceed any hypothetical medical disadvantages

of an abortion.

C. The Statutory Construction Suggested by the Government

Would Increase the Uncertainty of Coverage, and Render

the Statute Meaningless to an Extent Beyond Any Possible

Coverage Supported by Legislative History

The Government seeks to salvage the statute by recom-

mending an ad hoc determination in each case, focusing

upon whether “the defendant, although a licensed physi-

cian, does not exercise ‘medical’ judgment” in performing

the questioned abortion (Brief for the United States, at

98; id. “medical judgment” ; id. at 29 “ thard-core’ conduct” ;

id. at 32 “good faith”; id. at 37 n. 29 “bona fide pre-abor-

tion examination,” “arguable health grounds”). Such ef-

forts to hold on to the statute, by importing a lawyer’s

misunderstanding of the practice of medicine into the op-

erating room, are a serious encroachment upon the physi-

cian’s and patient’s need to have clear guidelines, or none

at all (beyond those provided for all forms of medical

practice by malpractice law and administrative licensing

sanctions ).

A requirement that a physician prove he exercised “good

faith” and rendered a “medical judgment” is even more

uncertain than the statute’s requirement of necessity for

preservation of “health.” The Government does not de-

fine “medical judgment,” nor can a ready definition be

found. This could mean a carefully reasoned judgment

that the patient fits the statute. That approach, however,

term “necessary” as one of “great indefiniteness,” 271 U.S. at 517,

“a vague requirement and one objectionable in a criminal statute.”

271 US. at 518. It is indeed.

brings one back to the multiple ambiguities of the statut,

To render a “good faith” “medical judgment” that th

statute is satisfied would surely require that the statu

itself be reasonably specific, which it is not.

Equally far fetched are interpretations which withhold

the criminal sanction where “arguable health grounds” ¢y.

isted, or where there was a “bona fide pre-abortion exanj.

nation.” “Arguable” health grounds may have been clear ty

both physician and patient, but unpersuasive to prosecutor

and jury. Similarly, the Government’s unelucidated no

tion of a “bona fide pre-abortion examination” would ep.

mesh court and jury in preposterous determinations of

how long and what kind of pelvic examinations a physician

must make to be exempt from criminal liability. Congress

could hardly have intended to regulate the duration and

quality of pelvic examinations when enacting in 1901 4

statute on abortion.

A more serious defect in the Government’s proposed

interpretation is its consequence for the physician and

patient. If one supposes that two physicians perform

two abortions under identical circumstances, but one physi-

cian personally feels his act was illegal, while the other

does not, only the former will be guilty because the latter

acted in good faith. Both, however, to establish good faith,

must bring forth proof in their own defense. If the sub

jectively guilty physician is a good actor, and conceals his

original state of mind, but the innocent physician acts

poorly, and becomes confused on cross-examination, the

verdicts may conflict with reality. Under the statute, of

course, neither physician will ever know whether he ae

tually violated the intent of Congress. Yet, the subjective

evaluation of his testimony by a randomly drawn jury of

non-peer laymen will serve as a future guide of sorts te

the entire District of Columbia medical profession. Con-

could never have intended such bizarre consequences

when enacting this statute.

Appellant submits that the only sensible analysis of the

statute is one which candidly recognizes its hopeless am-

biguity. The efforts of lawyers to inject relevant meaning

into the provisions of the law in question can only sub-

vert the role of Congress and confuse the medical profes-

sion. In 1901, when the statute was passed, medicine was

in a period of relative infancy. Wonder drugs, complex

surgery, concepts of physical vs. mental health, and the

entire modern-day realization of the patient’s complexity

were unknown quantities. It is not unkind to state in 1970

that a statute, presumably valid when passed, has become

too vague in light of intervening medical and intellectual

developments. Accordingly, there is no impropriety in this

Court’s invalidating the statute for vagueness, and inviting

Congress to make a fresh start, taking into account the

medical opinion of 1970, and the advances in medical

science over the last sixty-nine years. Indeed, the im-

propriety would lie in attempting to salvage some remnant

of the statute, by seeking to discern some possible con-

struction to save at least the skeleton of what was passed

in 1901. Particularly is this the case, where the Govern-

ment’s suggested constructions would open the door to

prosecutorial indiscretion. In recognition of the im-

propriety of engrafting vague exceptions onto an already

vague statute, this Court should exercise judicial restraint.

Restraint in the present case entails deference to the role

of Congress in casting the language of statutes. That role

cannot be preserved unless the Court takes the only course

which will remit the case to Congress. That course is a

candid holding that Congress expressed itself imperfectly

in 1901, and must reconsider the question. For this rea-

son, the statute should be declared void on its face.

Vv.

D.C. Code §22-201, as Applied to Impose Upon s

Physician the Burden of Proof That an Abortion Wa

“Necessary for the Preservation of the Mother’s Life &

Health,” Deprives Physicians of Liberty Without Due

Process of Law by Eroding the Presumption of Inno

cence and Invading the Privilege Against Self-Incriming

tion.

The settled law of the District of Columbia holds that

necessity for an abortion is entirely a matter of justification

for the defense. Neither the indictment, apparently, nor

the prosecution, need aver or prove that the abortion was

unnecessary. Judge Arnold, writing in Williams v. United

States, 138 F.2d 81 (D.C. Cir. 1943), stated the question as

follows:

“[WJhether the statute making abortion a crime in the

District of Columbia puts the burden on tke prosecution

to prove as a part of its case that the operation was

not necessary for life or health.” .

Answering the question in the negative, the Williams court

sustained the conviction of a non-physician for abortion

although “[n]o evidence was offered by the government to

support” a finding of lack of necessity. Defendant Williams

had based her denial of guilt upon the theory that she had

no connection whatever with the aborted woman, a defense

theory inconsistent with the possibility of an affirmative

defense of justification.

In two respects this District rule violates the constitu

tional rights of Dr. Vuitch as it would be applied in any

trial on the charges pending against him.

As a preliminary point, one must note that the under-

of the Williams case have been seriously eroded

in the ensuing twenty-seven years since 1943. No longer is

“gbortion . . . generally regarded as heinous in character.”

The diesacheian Medical Association and the Commissioners

on Uniform States Laws do not generally recommend con-

duet deemed heinous. Today the taboo surrounding the

word “abortion” has been lifted. The subject is debated in

its full significance, and judged by more sophisticated

standards than those which prevailed in 1943 when man-

power was needed to fight a major war.

Similarly, the fear expressed by Wiliams of “the alarm-

ing death rate . . . due to secret operations by unskilled

criminal sbortioniate” 5 is more beside the point today, with

modern antibiotics, than it was in 1943. In either case, it

was the felony punishment for abortion which promoted

secrecy, not the nature of the operation itself. Physicians,

chilled by the prospect of prosecution under a statute which

Williams described as containing “a broad exception with-

out precise limits,” were most unlikely to risk their liberty,

license, and livelihood for the patient’s sake, unless the

necessity was beyond debate in any quarter, including the

most hostile. Today, both the high death rate and the

secrecy are no more. The wealthy patient can afford mas-

sive psychiatric documentation of danger to her “health,”

or can fly to a jurisdiction with more specific and lenient

laws on abortion. Only the underprivileged minority is left

with the midwife and kitchen knife, and they have access

to the emergency rooms, if not the private pavilions, of

local hospitals for recovery.

The light assumption in Williams that an accused has

more ready access to proof of necessity for abortion will

also not stand up under scrutiny. The prosecution has

complete access to all facts which occurred outside th

operating room, including any information which might

pertain to the patient’s “health” prior to the abortion

Moreover, the prosecution may, by post-abortal examina.

tion of the patient, gather further evidence from her and

examining physicians. In no case need the patient fear self.

incrimination, for she can be guilty of no offense, regard.

less of the pervasive role she plays in inducing a physician

to perform the abortion. See Hunter v. Wheate, 53 App.

D.C. 206, 289 Fed. 604 (1923). Thus, she can be compelled

to testify, and to provide leads for the full range of evidence

that may be necessary to convict.

In addition, the constitutional rights to a presumption of

innocence, and the privilege against self-incrimination, have

grown in stature since 1943. Prosecutorial convenience does

not weigh so heavily today as then, nor are defendants

lightly put to the task of describing the very acts with

which they are charged, in order to convey an impression

sufficiently different from that of the prosecution’s case to

create a reasonable doubt in the minds of the jurymen.

The felony abortion statute, as construed in Williams

violates the due process clause of the Fifth Amendment by

reversing the presumption of innocence, because the physi-

cian must take the burden upon himself of proving that the

abortion was necessary to preserve the woman’s “health.”

To undertake such proof, the physician must first waive any

defense based upon not having participated at all in the

alleged offense. He must admit what the indictment states,

that he performed the abortion, and prove that the act was

justified.

Along line of decisions by this Court, carefully reviewed

by the Eighth Circuit en banc in Stump v. Bennett, 398 F.2d

111 (8th Cir. 1968) (en banc), establishes the presumption

of innocence on its constitutional plane. As this Court

stated in Deutch v. United States:

“One of the rightful boasts of Western civilization is

that the [prosecution] has the burden of establishing

guilt solely on the basis of evidence produced in court

and under circumstances assuring an accused all the

safeguards of a fair procedure.’ Irving v. Dowd, 366

U.S. 717, 729. Among these is the presumption of the

defendant’s innocence.” 367 U.S. 456, 471 (1961).

Plainly, this right is invaded when a physician can be con-

vieted solely because he performed an abortion, and without

farther proof.

Necessity is not a collateral matter, like self-defense.

With respect to abortion, the circumstances under which the

procedure was undertaken go to the very heart of the mat-

ter. It is not every abortion which the statute condemns,

but only a special, opaquely defined class. Wiliams incor-

rectly states that the exceptions are collateral and affirma-

tive justifications. In every case, however, the center of

the controversy will be whether the abortion in question

fell within the exception. Abortions per se are no offense.

It is only unnecessary abortions which the statute pro-

seribes. Under a broad definition of “health,” there are

few, if any, unnecessary abortions. Under other definitions,

there may be more, or many. By presuming that all abor-

tions are legally unnecessary, the Government may convict,

as it did in Williams, upon no more than a showing per-

suasive to the jury, that the physician performed the abor-

tion. It is presumed, unless the physician shows otherwise,

that the abortion was unnecessary. In other words, Dig

trict practice under Williams presumes, upon proof of om

element of the offense, that the second element is present

that the accused is guilty. This presumption of guilt egy.

not stand in light of the constitutional status of the pr.

sumption of innocence under the due process clause of the

Fifth Amendment.”

A related infirmity of the Williams rule inheres in its jp.

evitable invasion of the Fifth Amendment privilege against

self-incrimination. Williams requires that the physician

bring forth evidence that the abortion was necessary t

preserve the patient’s “health.” This means that the ace

cused physician stands mute at penalty of certain convie.

tion because of his failure to testify. If he testifies, hoy.

ever, he must admit the very fact of the abortion, ie,

complicity in one element of the offense, and then attempt

to persuade the jury that the second element of the offense

was not present. If the jury finds his “health” justifica-

tions insufficient, or that his “good faith” was not “good

enough,” the physician has been convicted upon his own

testimony. Moreover, if the jury had not believed the

prosecution’s evidence that an abortion was performed, the

physician’s testimony could supply proof from his own

mouth of both elements of the offense.

Leary v. United States, 395 U.S. 6 (1969), teaches that

the Williams rule must be held to violate the privilege

* Authorities recognizing the constitutional status of the pre

sumption of innocence go back to Cummings v. Missouri, 71 US.

(4 Wall.) 277, 328 (1866). See also United States v. Romano, 382

U.S. 136, 139-44 (1965) (presence at still does not justify inference

that accused possesses or controls the still) ; Spetser v. Randall, 357

U.S. 518, 525-26 (1958) ; Morissette v. United States, 342 U.S. 246,

274-75 (1952) ; Morrison v. California, 291 U.S. 82 (1934).

at self-incrimination. In Leary, registration and pay-

ment under the Marihuana Tax Act “compelled [an ac-

used] to expose himself to a ‘real and appreciable’ risk

of self-incrimination ... .” 395 U.S. at 16. Such registra-

tion “would surely prove a significant ‘link in a chain’ of

evidence tending to establish . . . guilt.” Marchetti v. United

States, 390 U.S. 39, 48 (1968).

So it is with the Williams rule. If the physician comes

forward with evidence that the abortion was necessary for

“health” reasons, he must perforce admit presence at the

scene, and performance of the very act charged in the in-

dictment. His own testimony will suffice to corroborate the

first element of the offense, namely, that he performed the

abortion. Not only will his own testimony provide a “link”

in the chain, it may provide both links to a two-link chain,

that is, the entire chain. He will have admitted perform-

ing the abortion, and the jury may not believe his reasons

for justification. Accordingly, a weak prosecution case may

be fortified and proved from the physician’s own testimony.

Since Williams requires that testimony, the District of

_ Columbia rule on burden of proof, or burden of persuasion,

invades the physician’s privilege against self-incrimination.

Under Leary, and earlier supporting decisions,” this is

not permissible.

" See, ¢.g., Haynes v. United States, 390 U.S. 85 (1968).

VI.

D.C. Code §22-201 Deprives Physicians and Ther

Patients of Rights Protected by the First, Fourth, Fifth,

and Ninth Amendments, and Is Void by Reason of Over.

breadth, Because Neither Narrowly Drawn Nor Sup

ported by Any Compelling or Legitimate Government]

Interests.

Not only does Appellee challenge the vagueness of the

statute, but also its substantive validity under the First,

Fifth, and other amendments to the United States Cop.

stitution. This Court may hold that the statute is not m.

certain and that it bears one or another construction which

will sustain it. However, it is most unlikely that the statute,

as written and re-enacted, can be construed to permit an

abortion, in clinical surroundings, of a woman in good

“health,” who has had contraceptive failure, or did not for

some reason utilize contraceptives. Such a woman is the

individual whose request for an abortion, in the very early

stages of pregnancy, is most frequent.

Even assuming that this Court enjoins the statute for

vagueness, the further question of overbreadth should be |

reached and decided. This has been the practice of the

Court in a wide variety of cases, particularly where free

dom of association™ was at issue, as it is here. “[It] would —

furnish a definitive ruling on a point of federal law for...

future guidance...” of the parties. A final “definitive

ruling” on the federal questions raised hereinafter would

53 See, e.g., NAACP v. Button, 371 U.S. 415 (1963).

8° LSCRRC v. Wadmond, 299 F. Supp. 117, 123 (S.D.N.Y. 1969)

(Friendly, J.).

avoid costs and delay, prevent continued litigation on the

sibstantive issues, and conserve judicial time and resources.

Ultimately, the question presented is whether a State

may enact a felony statute to punish a physician, a woman,

and her husband, with up to ten years in federal prison,

where the couple requests, and the physician performs, a

therapeutic surgical procedure to abort a pregnancy which

the couple did not want, but were unable to prevent. Under

Griswold v. Connecticut, 381 U.S. 479 (1965), it is clear

that a husband and wife* are constitutionally privileged

to control the size and spacing of their family by contra-

ception. The failure of contraception, however, is common-

place. Authoritative estimates are that between 750,000

“Griswold was silent on the significant problem of access by

married persons to contraceptives. A result of non-access, and

failure, is the birth of over 100,000 illegitimate children yearly

to girls age nineteen or younger. See U.S. Burzau or THE CENSUS:

Statistical Abstract of the United States: 1969, Table 59, at 50

(90th ed. 1969).

Outside of the state judiciary in Massachusetts, authorities have

wiformly held the Griswold rationale applicable to litigants who

had not entered into the marriage contract. Compare Baird v.

Fisenstadt, —— F.2d ——, No. 7578 (1st Cir. July 6, 1970) (in-

validating Massachusetts statute which outlawed distribution of

contraceptives to the unmarried), Mindel v. United States Civil

Service Comm’n, 312 F. Supp. 485 (N.D. Calif. 1970) (reinstating

postal clerk who had been dismissed for cohabitation without

benefit of marriage), and Roe v. Wade, —— F. Supp. ——, Civ.

No. 3-3690-B (N.D. Tex. June 17, 1970) (per curiam) (Texas

anti-abortion statutes “deprive single women and married couples

of their right, secured by the Ninth Amendment, to choose whether

to have children.”), with Sturgis v. Attorney General, 260 N.E.

pha 690 (Mass. 1970) (directly contrary to federal decision in

rd).

“If a married couple is to have private control over numbers

and spacing of children, induced abortion is absolutely necessary

as a backstop to contraceptive failure. For compilation of contra-

ceptive failure rates according to method used, see P. Enguicn &

A Ensuice, Poputation Resources ENVIRONMENT 218-19 & Table

en ated

and 1,000,000 births each year are unwanted.” These are

in addition to the 200,000 to 1,000,000 unwanted pregnancies

which are estimated to end in abortions induced outside of

the clinical setting.” Taken together, some 950,000 t

2,000,000 unwanted births plus non-clinical abortions ocegr

yearly. Accordingly, one must conclude that restrictive

anti-abortion statutes, such as the District of Columbia lay

in question here, drastically affect the conduct of literally

millions of American citizens.

The national significance of the issues in this case cap

also be inferred from increased activity within the medica]

profession, and in the legislatures. On June 25, 1970, the

House of Delegates of the American Medical Association

voted to permit licensed physicians to perform abortions

in hospitals, with the sole additional qualification that two

other physicians be consulted.” Physicians were cautioned,

9-1 (1970); N. Eastman & L. Hetiman, Wriuiams Ossterais

1068-75 (13th ed. 1966); Hardin, History and Future of Birth

Control, 10 PeRsPEcrTivEs IN Biotoay & Men. 1, 7-13 (1966) ; i

Clinical Effectiveness of Contraceptive Methods, 78 Am. J

Gynec. 650 (1959).

5¢The most recent scholarly examination of unwanted birth

magnitudes will appear in a forthcoming issue of Scrmnce. A

summary of these findings by Dr. Charles F. Westoff of Princeton

University’s Office of Population Research, analyzing the 1965 Na

om +e ty Study, appeared in the N.Y. Times, Oct. 29, 1969,

at 25, co

*' Secret induced abortions are inherently incapable of quantif-

cation. Nonetheless, one can be certain that the number is very

high. For estimates, see Fisher, Criminal Abortion, in Axortion

tx America 3-6 (H. Rosen ed. 1967) ; M. CaLpErone (ed.), Apor

TION IN THE UniTED States 180 (1958) ; P. GzsHarp et al., Paes

NANOY, BimTH AND ABORTION 136-37 (1958) ; F, Tavssia, ApoaTion:

Spon TANEOUS AND InpucED 25 (1936) ; Regine, A Study of Preg-

nancy Wastage, 13 Muaawx Mem. Funp Quart. No. 4, at 347-65

(1935).

58 See N.Y. Times, June 26, 1970, at 1, col. 1. The statement has

not yet been published in an official A.M.A. document. A recent

however, not to violate existing state statutes, forty-seven

of which are far more restrictive.” Three states in 1970—

New York, Alaska, and Hawaii—removed, for the most

part, any criminal penalties which might previously have

heen imposed upon physicians for performing abortions in

appropriate medical facilities. From 1967 to 1970, twelve

states had adopted therapeutic abortion statutes similar

to that of the Model Penal Code’s 1962 Proposed Official

Draft. More recently, on August 4, the Commissioners on

Uniform State Laws issued a Second Tentative Draft of a

Usrrorm Asortion Act. The Act sanctioned abortions by

licensed physicians “within 24 weeks after the commence-

ment of the pregnancy; or if after 24 weeks ... ” under

the circumstances set out in the Model Penal Code proposal.

These developments bear witness to the importance of

the issues presented here.

While policy-making and legislative bodies have debated

the issue of abortion, courts, confined to the constitutional

framework, have been asked to resolve the questions of

individual privacy and legislative power which are pre-

isue of the J.A.M.A. noted that only 26 physicians had resigned

a body because of new policy. 218 J.A.M.A. 1242 (Aug. 24,

® For analysis of abortion laws in the United States prior to

the most recent changes, see Lucas, Laws of the United States, in I

AporTion In 4 CHANGING WorLD 127 (R. Hall ed. 1970) ; George,

Current Abortion Laws: Proposals and Movements for Reform,

17 W. Res. L. Rev. 371 (1966).

See, e.g. [1970], N.Y. Laws ch. 127, at 170, amending N.Y.

Prenat Law §125.05(3) (McKinney 1967).

“ See Move Pena Cope §230.3(2) (Proposed Official Draft,

1962). The states are Arkansas, California, Colorado, Delaware,

Georgia, Kansas, New Mexico, North Carolina, Oregon, South

Carolina, and Virginia.

sented here. Although the questions framed in this ¢ay

have not been decided by this Court, numerous federaj

and state decisions attest to the validity of the federal egg.

stitutional rights asserted here. Moreover, the sometimes

sharp divisions in the courts below illustrate further th

need for a decision at this level.

A. The Rights to Give and Receive Medical Advice and Treg,

ment

The present action has First Amendment implications,

namely the right of the physician to provide medical jn.

formation, followed by treatment, for his patients, and the

right of the patient to receive same. The right of a com.

petent licensed physician to give medical advice can be

characterized as free expression alone,” or when viewed a3

* Similarly, it is an aspect of the physician’s general liberty

under the Fifth Amendment to practice his chosen profession free

from unconstitutional restraint. See Willner v. Committee on

Character and Fitness, 373 U.S. 96, 102-03 (1963) ; Slochower y,

Board of Higher Educ., 350 U.S. 551 (1956) ; Birnbaum v. T:

871 F.2d 672 (2d Cir. 1966); see also Unsted States v. Freund,

290 Fed. 411 (D. Mont. 1923), invalidating a Prohibition act

which restricted the amount of alcohol a physician could prescribe:

“Tt is an extravagant and unreasonable attempt to subordinate

the judgment of the attending physician to that of Congres,

in respect to matters with which the former alone is competent

to deal, and infringes upon the duty of the physician to pre

scribe in accord with his honest judgment, and upon the right

of the patient to receive the benefit of the judgment of the

physician of his choice.”

With respect to the prescription of contraceptives, moreover,

physicians received considerable protection in many early case

to the point that the various Comstock acts took the path of

tude. See, ¢.g., United States v. Nicholas, 97 F.2d 510 (24

1938) (L. Hand, J.) ; United States v. One Package, 86 F.2d

2d Cir. 1936) (A. Hand, J.) ; Youngs Rubber Corp. v. C. I.

Co., 45 F.2d 103 (2d Cir. 1930) (Swan, J.).

rae

an aspect of the physician-patient relationship, it becomes

of the freedom of association between physician and

patient. The First Amendment has long been held to ac-

cord presumptive protection for the “freedom to associate

and privacy in one’s associations.” NAACP v. Alabama,

957 U.S. 449, 462 (1958). This has been the case with the

marital relationship,” and that of attorney and client.“

The relationship between physician and patient is no dif-

ferent; it promotes the fundamental purpose of maintain-

ing the health and well-being of the American people.

The advice aspect of medical practice is but one part

of Appellee’s claim, for medical treatment involving in-

terruption of the unwanted pregnancy may be what the

patient ultimately requests, and the criminal statute pro-

scribes.

“[W]hen ‘speech’ and ‘nonspeech’ elements are com-

bined in the same course of conduct, a sufficiently im-

portant governmental interest . .. must appear... .”

United States v. O’Brien, 391 U.S. 367, 376 (1968).

The nature of this interest has been described by a “variety

of descriptive terms: compelling; substantial; subordinat-

ing; paramount; cogent; strong.” 391 U.S. at 376-77 (cita-

tions omitted).

® See Griswold v. Connecticut, 381 U.S. 479, 486 (1965), describ-

ing the “marriage relationship” as

“an association that promotes a way of life, not causes; a har-

mony in living, not political faiths; a bilateral loyalty, not

commercial or social projects. Yet it is an association for as

noble a purpose as any involved in our prior decisions.”

“See NAACP v. Button, 371 U.S. 415 (1963) ; Brotherhood of

Railway Trainmen v. Virginia, 377 U.S. 1 (1964); United Mine

Workers v. IUinois State Bar, 389 U.S. 217 (1967).

Before discussing the possible State interests which haye

been offered to compel a woman to bear and raise childre

against her will, Appellee will examine various other right,

of constitutional dimension which the challenged stataty

B. The Rights of Marital and Personal Privacy

The antecedents and progeny of Griswold v. Connecticut,

381 U.S. 479 (1965), offer generalized support for applying

a presumptive constitutional right of privacy to encompass

the right of a woman to have an abortion, in the early

stages of pregnancy, when contraception failed or was not

used.

Griswold is not an isolated decision confined to its facts,

but is one in a continuing line of cases involving various

aspects of personal privacy and family autonomy.” Most

recently this Court recognized a “fundamental . . . right to

be free, except in very limited circumstances, from m.

wanted governmental intrusions into one’s privacy.” Staa-

ley v. Georgia, 394 U.S. 557, 564 (1969) (Marshall, J,).

Indeed, the Stanley case is of special importance, for there

a majority of the Court embraced with approval the very

significant language from Mr. Justice Brandeis’ dissent

in Olmstead v. United States:

~ Commentary on the Griswold case has been extensive. Par.

ticularly noteworthy materials include: Kelly, Clio and the Court:

An Wicit Love Affair [1965] Sup. Cr. Rev. 119; Gross, The Com

cept of Privacy, 42 N.Y.U. L. Rev. 34 (1967) ; Pilpel, "Birth Control

and a New Birth of Freedom, 27 Onno Sr. L.J. 679 (1966) ; Frank

lin, The Ninth Amendment, 40 Tux. L. Rev. 487 (1966) ; Beaney,

The Griswold Case and the Expanding Right to Privacy, 1966 Wn.

L. Rev. 979; Symposium—Comments on the Griswold Case, 4

Mics. L. Rev. 197 (1965) ; Note, The Uncertain Renaissance of the

Ninth Amendment, 33 U. Cur L. Rev. 814 (1966) ; Note, The

Supreme Court—1964 Term, 79 Harv. L. Rev. 56, 162-65 (1965).

“The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness. They

recognized the significance of man’s spiritual nature,

of his feelings and of his intellect. They knew that only

a part of the pain, pleasure and satisfactions of life

are to be found in material things. They sought to

protect Americans in their beliefs, their thoughts, their

emotions and their sensations. They conferred, as

against the Government, the right to be let alone—

the most comprehensive of rights and the right most

valued by civilized man.” 277 U.S. at 478.

Olnstead’s dissent was also quoted with approval by

Burger, Circuit Judge, in Application of the President and

Directors of Georgetown College, Inc., 331 F.2d 1010, 1016-

11 (D.C. Cir.) (en banc) (dissenting opinion), cert. denied,

317 U.S. 978 (1964).

The District of Columbia abortion law, if strictly con-

strued, gives little consideration to a woman’s feelings,

pains, thoughts, and emotions. It impinges severely upon

her dignity, her life plan, and her marital relationship

if she has one. It is a first order invasion of her privacy

with irreparable consequences.

Retired Justice Tom C. Clark has suggested that the

concept of privacy should include control over family plan-

ning beyond the stage of contraception. He wrote:

“TAJbortion falls within that sensitive area of privacy

—the marital relation. One of the basic values of this

privacy is birth control, as evidenced by the Griswold

decision. Griswold’s act was to prevent formation of

the fetus. This, the Court found, was constitutionally

protected. If an individual may prevent conception,

why can he not nullify that conception when ee

has failed?” *

The protection of various rights in the marital and

family context has firm origins in decisions dating bad

over fifty years.

A first and recent example, Loving v. Commonwealth,

388 U.S. 1, 12 (1967) (alternate ground of decision), sp.

cifically held that the due process clause of the Fourteenth

Amendment protects “[t]he freedom to marry .. . as om

of the vital personal rights essential to the orderly pursuit

of happiness by free men.” Loving stands for the propos.

tion that “the right to marry” is protected by the dw

process clause although not specifically mentioned in the

Bill of Rights. The decision must lend further support

to arguments that other important interests associate

with marriage and the family are protected from arbitrary

government intrusion.

Associated with the right to marry is the right to raise

children, if one chooses, without arbitrary governmental

interference. A unanimous Court indeed has held that “the

right to have offspring” is a constitutionally protected

“human right” which cannot be taken away by a discrim

inatory statute requiring the sterilization of some persons

convicted of crime, but not of others similarly situated

Skinner v. Oklahoma, 316 U.S. 535, 536 (1942). Again, the

right to have offspring is not mentioned in the Bill of

Rights. However, the Skinner Court, composed of Justices

Douglas (author of the opinion), Black, Reed, Frankfurter,

Murphy, Byrnes, Roberts, Jackson, and Chief Justice Har-

lan Fiske Stone (the latter two wrote concurring opinions)

* Clark, supra note 34, at 9.

had no difficulty holding that this right was protected

by the Constitution. Moreover, these members of the Court

had all disassociated themselves from the economic sub-

stantive due process school of thought found in the much

eriticized and overruled opinion of Lochner v. New York,

198 U.S. 45 (1905).

Assuming, then, that the right to have offspring enjoys

a constitutional presumption of protection, should not a

right not to have offspring be of equal stature under the

Constitution ?

Further cases upholding rights associated with the family

include Pierce v. Society of Sisters, 268 U.S. 510 (1925),

and Meyer v. Nebraska, 262 U.S. 390 (1923), both of which

were subsequently reaffirmed in Griswold v. Connecticut,

381 U.S. 479, 483 (1965). A unanimous Court in Pierce

recognized a right to send one’s children to private school.

This right was derived from “the liberty of parents and

guardians to direct the upbringing and eduction of chil-

dren under their control.” 268 U.S. at 534-35. The Pierce

Court, moreover, included Justices who rejected the eco-

nomic due process formula of Lochner, namely Justices

Brandeis, Holmes, and Stone. On the basis of Pierce, is it

not reasonable to argue that parents also should have a

right to determine how many children whose “upbringing

and eduction” they will direct? Not dissimilar to Pierce

was Meyer, a 7-2 decision invalidating a State statute

which prohibited the teaching of German to pupils below

the eighth grade. The Meyer Court found ,that the due

process clause included “the right . . . to marby, establish

a home and bring up children.” 262 U.S. at 399. Again,

the decision is not objectionable as a manifestation of eco-

nomic due process because it was joined by Justice Bran-

deis, among others, who rejected the Lochner scheme, The

dissents, moreover, by Justices Holmes and Sutherland

rested on the assumption that the State had a substantia]

interest in assuring that foreign-born students and sty

dents of alien parentage had considerable training in th

English language before being exposed to other languages

Taken together, the Griswold, Stanley, Loving, Skinner,

Pierce, and Meyer decisions all illustrate that the Const.

tution protects certain privacy and family interests from

government intrusion unless a compelling substantial ju.

tification exists for the legislation.” Appellee contends that

the right of a patient to determine whether to have addi.

tional children, and if not then to terminate a pregnancy in

its early stages, is such a right, fully entitled to protection

in the setting of this case.

C. The Right of ea Woman to Choose Whether and When

Ber ond Raise Children

‘In addition to the decisions upholding rights associated

with personal and family privacy, an overlapping body of

precedent extends significant constitutional protection to

the citizen’s sovereignty over his or her own body.

As early as 1891 this Court stated:

“No right is held more sacred, [n]or is more carefully

guarded ... than the right of every individual to the

** See also Poe v. Ullman, 367 U.S. 497, 551-52 (1961) (Mr.

Justice Harlan, dissenting) :

“(T]he integrity of [family] life is something so fundamental

that it has been found to draw to its protection the principles

of more than one explicitly granted Constitutional right. ..

Of this whole ‘private realm of family life’ it is difficult to

e what is more private or more intimate than a husband

and wife’s marital relations.”

possession and control of his own person, free from

all restraint or interference of others unless by clear

and unquestionable authority of law. As well said by

Judge Cooley, ‘The right to one’s person may be said

to be a right of complete immunity: to be let alone.’”

Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891),

quoted in Terry v. Ohio, 392 U.S. 1, 8-9 (1968).

This right, like all rights, has limits, as illustrated by

Jacobson v. Massachusetts, 197 U.S. 11 (1904). There this

Court upheld a compulsory vaccination law, but only to

avoid “great dangers” and to protect “the safety of the

general public.” 197 U.S. at 29. The lengths to which the

Court went, however, to justify a shot in the arm point up

the degree to which personal autonomy is entitled to pro-

tection.

In marital and family matters relating to procreation,

this Court has consistently recognized and sustained the

individual’s rights, and has done so on a constitutional

plane. “The freedom to marry ...,” Loving v. Common-

wealth, 388 U.S. 1, 12 (1967) ; “the right to have offspring,”

Skinner v. Oklahoma, 316 U.S. 535, 536 (1942); and “the

liberty of parents and guardians to direct the upbringing

and education of children under their control,” Pierce v.

Society of Sisters, 268 U.S. 510, 534-35 (1925), are all pro-

tected constitutional rights, embedded in American law,

as is the right, at least of a married woman, to use contra-

ceptives.

These rights, however, do not complete the set. Without

a right to respond, a woman is at the mercy of possible

contraceptive failure, particularly if she is unable or un-

willing to utilize the most effective contraceptives. When

pregnancy begins, she is faced with a governmental map.

date compelling her to serve as an incubator for

and finally as an ostensibly willing mother for up to twenty

or more years. Often she must forego a career or further

education, and endure economic and social hardships

Under the present law she is given no other choice. With.

out the right to obviate contraceptive failure, other rights

of privacy or family rights would be largely diluted. Cop.

tinued pregnancy is compulsory, unless she can persuade

the authorities that she is potentially suicidal, or that her

“health” is otherwise endangered.

D. The Fifth Amendment Due Process Right of a Presently

“Healthy” Woman to Equal Access to a Therapeutic Abor.

tion on the Same Terms as a Presently “Unhealthy” Woman

A third interest of constitutional dimension infringed

by the District anti-abortion statute is the “healthy” wo.

man’s interest in having access to abortion on the same

terms as an “unhealthy” woman. Putting to one side the

ambiguity of the “health” concept, the statute divides abor.

tion applicants into two groups, the “healthy,” and “un.

healthy.” The latter group may obtain a legal abortion

without sanction, if they can find physicians willing to risk

the possibility of prosecutorial abuse of the statute’s vague

terms. The “healthy” woman, however, whose “health”

would not be damaged by continued pregnancy, is excluded.

In spite of her and/or her husband’s desire to postpone

pregnancy, or not to have further children, she may not ob-

tain a legal abortion without risking her physician’s liberty

and professional license. Indeed, while she is not person-

ally liable, her husband and other family members who as

sist in arranging the abortion may be guilty as accomplices.

Although the Fifth Amendment has no specific equal pro-

tection clause, this Court has frequently held that similar

standards apply to scrutiny of invidious discriminations

under the due process clause of that Amendment. This is

the necessary teaching of cases such as Shapiro v. Thomp-

son, 394 U.S. 618, 641-42 (1969) ; and Bolling v. Sharpe, 347

US. 497 (1954). “[W]hile the Fifth Amendment contains

no equal protection clause, it does forbid discrimination

that is ‘so unjustifiable as to be violative of due process.’ ”

Schneider v. Rusk, 377 U.S. 163, 168 (1964). Compare

Shapiro v. Thompson, supra, 394 U.S. at 663 (Harlan, J.,

dissenting) (discussion of “the Equal Protection Clause of

the Fourteenth Amendment [and] the analogous standard

embodied in the Due Process Clause of the Fifth Amend-

ment.”).

This due process prohibition against invidious discrimi-

nations that lack rational justification is relevant here. As

the analysis, infra, of possible governmental interests be-

hind the abortion statute will show, the discrimination in

the present case cannot be squared with the due process

clause on any theory.

Numerous decisions by lower courts, in both the federal

and state systems, bear witness that the rights asserted

here are of constitutional dimension, and may be recog-

nized by straightforward application of traditional con-

stitutional principles.

In late September, 1969, the Supreme Court of Cali-

fornia became the first appellate court to recognize the

constitutional stature of a “fundamental right of the woman

to choose whether to bear children... .”* The Belous

* California v. Belous, 71 Cal. 2d ——, ——, 458 P.2d 194, 199,

8 Cal. Rptr. 354, 359 (1969), cert. denied, 397 U.S. 915 (1970).

court found this right implicit in this Court’s “repeatej

acknowledgment of a ‘right of privacy’ or ‘liberty’ in unt

ters related to marriage, family, and sex.” ®

More recently, three different decisions by statutory

three-judge federal courts have invalidated restrictions op

access to medical abortion in Wisconsin, Texas, and Geor.

gia. The first, McCann v. Babbitz," recognized in that juris.

diction a woman’s

“basic right reserved to her under the ninth amendment

to decide whether she should carry or reject an embryo

which has not yet quickened.” 310 F. Supp. at 302.

McCann grew out of the prosecution of a physician, but

the three-judge court had no difficulty holding that a

Belous, a state court appeal of a conspiracy conviction of a physi-

cian, involved a statute similar to that in the present case.

One year earlier, a California trial court had ruled that the

Eighth and Fourteenth Amendments prohibited license revocation

proceedings against p! who had performed hospital ap

proved abortions on patients exposed in early pregnancy to German

measles. The opinion of the trial court, however, simply enumerated

those Amendments among various conclusions of law, without

porting the conclusions with any attempt at reasoned

Nonetheless, the result is of interest. See Shively v. Board of Modi

cal Examiners, No. 590333 (Calif. Super. Ct., San Fran. County

Sept. 24, 1968) (not reported), on remand from 65 Cal. 2d 475, 421

P.2d 65, 55 Cal. Rptr. 217 (1968) (granting physicians’ motions for

discovery, without reference to merits).

* 71 Cal. 2d at ——, 458 P.2d at 199, 80 Cal. Rptr. at 359, citing,

e.g., Griswold v. Connecticut, 381 US. 479 (1965) ; Loving ¥.

Virginia, 388 U.S. 1, 12 (1967) ; Skinner v. Oklahoma ez rel. Wit

liamson, 316 U.S. 535, 536 (1942).

7310 F. Supp. 293 (E.D. Wis. 1970) (per curiam), appeal

docketed, 38 USL.W. $524 (U.S. June 20, 1970) (No. 397, Oct,

1970 Term).

iF ;

physician has standing to assert the rights of pregnant

patients.”

The second recent federal decision, Roe v. Wade,” de-

dared the Texas anti-abortion statutes unconstitutional on

the similar ground that

“they deprive single women and married couples of their

right, secured by the Ninth Amendment, to choose

whether to have children.”

A third federal decision, Doe v. Bolton,” followed Belous,

McCann, and Roe, holding:

“(T]he concept of personal liberty embodies a right to

privacy which apparently is also broad enough to in-

clude the decision to abort a pregnancy.

« ., [T]he reasons for an abortion may not be pro-

scribed. ...”

Numerous lower courts have followed this lead, in both

federal and state disputes." In addition, three-judge courts

"The standing of a physician to assert a patient’s rights along

with his own follows from Griswold v. Connecticut, 381 U.S. 479,

481 (1965), and Barrows v. Jackson, 346 U.S. 249, 257 (1953). On

this standing point, lower court decisions involving abortion laws

all agree. See also Planned Parenthood Ass’n of Phoeniz v. Nelson,

Civ. No. 70-834 PHX (D. Ariz. Aug. 24, 1970) (per curiam) ;

Doe v. Bolton, —— F. Supp. ——, Civ. No. 13676 (N.D. Ga. July

$1, 1970) (per curiam) ; Roe v. Wade, —— F. Supp. ——, Civ. No.

$.3690-B (N.D. Tex. June 17, 1970) (per curiam) ; United States

: A ee v. Follette, 313 F. Supp. 269, 273 (S.D.N.Y. May

2 F, Supp. ——, Civ. No. 3-3690-B (N.D. Tex. June 17,

1970) (per curiam).

"___ F. Supp. ——, Civ. No. 18676 (N.D. Ga. July 31, 1970)

(per curiam).

"See, ¢.g., State v. Munson (S.D. 7th Jud. Cir., Pennington

County Apr. 6, 1970) (Clarence P. Cooper, J.) (recognizing the

woman’s “ ‘private decision whether to bear her unquickened

child’”) ; State v. Ketchum (Mich. Dist. Ct. Mar. 30, 1970) (Reid,

have been convened in a number of states to consider action

quite similar to that presented here.” oy

The Distinction Between Personal and Economic ~

Rights Under the Due Process Clause and the

Relevance of the Ninth Amendment as an Aid”

to Construction

Appellee’s position is by no means an assertion that

courts ought “to roam at large in the broad expanses of

policy and morals,” * nor that this Court should “sit ag,

super-legislature to weigh the wisdom of legislation nor tp

J) (“the statute as written infringes on the right of privacy in

the physician-patient relationship, and may violate the

right to safe and adequate medical advice and treatment.”) ; Com

monwealth v. Page, Centre County Leg. J. at 285 (Pa. Ct. Comm,

PL, Centre ras eg July 23, 1970). (Campbell, P.J.) (“the abortion

statute interferes with the individual’s s private right to have or nott

have children.”) ; People v. Gwynne, No. 17 (Calif. Mun. Ct,

Orange County Aug. 13, 1970) (Schwab, J.) ; People v. Gwynne,

No. 173309 (Calif. Mun. Ct., Orange Coun June 16, 1970)

(Thomson, J.) ; People v. Barksdale, No. 33237C (Calif. Mun. Ot,

Alameda County Mar. 24, 1970) (Foley, J.); People v. Robb, Now

149008 & 159061 (Calif. Mun. Ct., Orange P Suny. 1088 (DER

(Mast, J.) ; cf. United States v. Vuitch, 305 F. oa D.C.

pert of juris. 1061,

ws v. Hicks, Civ. No. 70-1088-CC (C.D. Calif,

filed May 14, 1990); arnold v. Sendak, IP 70-C-217 (8.D. Ind,

sete [oar Edwards, Civ. No. 2665 (W.DN.

aap ceshcn v. California, 332 US. 46 90 (1947) (dissenting

opinion of Mr. Justice Black). See also Griswold v. Connecticut,

381 U.S. 479, 507 (1965) (Black, J., dissenting) ; id. at 527 (Stew.

art, J., dissenting) ; ; Ferguson v. Skrupa, 372 U.S. 726, 780 ba

decide whether the policy which it expresses offends the

public welfare.”"’ Here, as in Griswold, the position is

that there are certain sacred rights associated with indi-

vidual privacy and the marital relation. These rights have

already been held to include the rights to marry, have chil-

dren, not have children (by use of contraceptives), and

raise children. Appellee claims that these rights also in-

dude the right not to have children in the case where preg-

nancy can be terminated in its early stages by means of

an induced or therapeutic abortion. This is by no means &

novel claim in light of the lines of decision discussed above.

Two distinctions can be made which limit the scope of

the principle asserted: first, that there are constitutional

justifications for treating “personal” rights differently

from purely “economic” rights in cases arising under the

due process clause, and second, that there are even weight-

ier considerations for treating “privacy” and “marital”

rights with great solicitude in order to protect these most

important areas from legislative experimentation. Griswold

recognized these distinctions. Writing for the majority

Mr. Justice Douglas reaffirmed the proposition that the

Court does not

“sit as a super-legislature to determine the wisdom,

need and propriety of laws that touch economic prob-

lems, business affairs, or social conditions.” 381 U.S.

at 482.

However, the Court recognized an important distinction

where the challenged statute

“operates directly on an intimate relation of husband

and wife and their physician’s role in one aspect of that

relation.” 381 U.S. at 482.

" Day-Brite Lighting, Inc. v. Mt i, 342 U.S. 421, 423 (1952).

That is precisely the type of situation presented by th

case, and the kind of circumstance envisioned by the on,

curring opinion in Griswold by Mr. Justice Goldbergy

“T quite agree with Mr. Justice Brandeis that . te

State may .. . serve as a laboratory; and ‘i a

social and economic experiments ...’ I do not believe

that this includes the power to experimen with ‘the

fundamental liberties of citizens ....” 381 U.S. at 496.

It is apparent, moreover, that Justices Holmes, Brandeis,

Stone, Jackson, Frankfurter, and Reed also took this pos.

tion. They consistently rejected an economic due process

approach, but joined in due process opinions which pr.

tected fundamental “personal” liberties. These have *

ready been discussed at length.

In addition, there are more recent expressions which

indicate a different standard for testing “legislation

[which] touches upon fundamental individual and personal

rights essential to maintaining the independence, integrity,

and private development of a citizen in a highly organized,

yet democratic society.” "* The several “right to travel”

cases recognized a right which is nowhere spelled out in the

Constitution or Bill of Rights,” as do decisions which —

® Emerson, Nine Justices in Search of a Doctrine, 64 Mion. L.

Rev. 219, 224 (1965). Professor Emerson suggests that this “dis

tinction is . . 8 fundamental one,” éd., and analyzes cases which

can be explained on such a basis. Eg., Aptheker v. Secretary of

State, 378 U.S. 500 (1964).

%E.g., Aptheker, supra; Shapiro v. Se ar 394 US. 618

(1969). "United States v. Laub, 385 U.S. 475 (1967); Zemel ¥.

Rusk, 81 US. 1 (1965) ; Lynd v. Rusk, 389 F.2d 940 (D.C. Cir.

1967) ; see United States v. Guest, 383 U.S. 745, 757-59 (1966)

(Stewart, J.) :

(footnote continued on next page)

proadly protect freedom of “association” far beyond the

mere articulation of ideas and into the sphere of organized

action.” A majority of this Court last Term, in a case con-

gerning allocation of government economic benefits among

‘aants with diverse needs, recognized the continuing

validity of this distinction. A distinction was drawn be-

tween “state regulation in the social and economic field,”

and that “affecting freedoms guaranteed by the Bill of

Rights... -” Dandridge v. Williams, 397 U.S. 471, 484

(1970). In Dandridge, the Court divided as to which stand-

ard and which characterization should apply. In the pres-

ent case, there is no room for difference. The conflict here

involves state interference in wholly private behavior.

Moreover, the behavior intimately concerns the family, and

the highly personal decision of a woman as to whether she

should assume the life-long responsibilities that inhere in

allowing a newly-begun pregnancy to continue.

Principled justification exists for making this distinc-

tion." The Constitution grants plenary power to the legis-

lative branch to regulate commerce and to levy taxes for

“The Constitutional right to travel . . . occupies a position

fundamental to the concept of our Federal Union. * * * [T]hat

right finds no explicit mention in the Constitution. The reason,

it has been suggested, is that a right so elementary was con

ceived from the beginning to be . . . necessary ..-- eee? All

have agreed that the right exists.”

* See, ¢.g., United Mine Workers v. IUinois State Bar, 389 U.S.

27 (1967) ; Brotherhood of Railroad Trainmen v. Virginia, 377

US. 1 (1964) ; NAACP v. Button, $71 U.S. 415 (1963).

—-¥, Cooper, $36 U.S. 77, 95 (1949) (Frankfurter, J. concurring) ;

Rostow, The D

L. Rev. 198, 215-24 (1952) ; cf. Tussman & ten Broek, The Equal

Protection of the Laws, 37 Cauir. L. Rev. 341, 371-73 (1949) (simi-

lar dichotomy suggested for equal protection setting).

tye as

‘ee

54 .

the general welfare. .It grants no such power to the courts

for appraising economic legislation. On the other hand, the

Constitution grants considerable power to the courtsfg

the purpose of protecting certain basic human rights, And,

the Constitution grants no such power to the legislatiy

branch for the purpose of experimenting with basic hunigs

rights because these rights are to be protected rather tha

subjected to legislative regulation. It follows, therefore, in

light of the due process clause and the Ninth Amendment

(discussed below), that the judiciary is charged with the

protection of those rights in the Bill of Rights and othe

non-economic fundamental rights which have not bem

enumerated, such as those associated with the family, par.

ticularly where federal governmental action is present,

as here.

Significantly, the text of the Constitution does not pro.

hibit the courts from protecting basic human rights which

are not enumerated. The draftsmen of the Bill of Rights

could certainly have used language to limit the courts

to protecting only those rights which were specifically

named. The very opposite was done, however, by the ex-

pansive language of “rights” “not enumerated,” “privi-

leges and immunities,” and “due process of law.” These

latter terms, moreover, were written against the background

of Chief Justice Marshall’s statement in McCulloch v. Mary.

land, 17 U.S. (4 Wheat.) 316, 407 (1819), that:

“We must never forget that it is a Constitution we are

expounding . . . intended to endure for ages to come,

and consequently to be adapted to the various crises

in human affairs.”

Similarly, Mr. Justice Brandeis wrote:

“Clauses guaranteeing to the individual protection

against specific abuses of power, must have a similar

capacity of adaptation to a changing world . . The

of science in furnishing the ehaemmment with

means of espionage is not likely to stop with wire

tapping. Ways may some day be developed by which

the Government . . . will be enabled to expose to a jury

the most intimate occurrences of the home .... Can

it be that the Constitution affords no pivtartion dgninat

such invasions of individual security?”

Olmstead v. United States, 277 U.S. 438, 472, 474 (1928)

(dissenting opinion).

Finally, what was said by Mr. Justice Stewart in a post-

Griswold decision may be aptly paraphrased to apply in

the present context:

“The Constitutional right [of marital privacy] . . . 0oc-

cupies a position fundamental to the concept of our

Federal Union. * * * [TJhat right finds no explicit

mention in the Constitution. The reason, it has been

ee ten eee

from the beginning to be... necessary ....

United States v. Guest, 383 U.S. 745, 757-58 (1966). Can

it be that a right of marital privacy, or personal privacy or

autonomy, occupies a lesser position than a right to travel

from state to state?

Ope basic purpose of the first nine amendments could not

have been to render the courts helpless in the face of gov-

ernment intrusion upon personal and marital privacy.

What has been said concerning the due process clause and

the distinction between personal and economic rights finds

further support in the Ninth Amendment, as reongigas

in the Griswold concurrence by Mr. — ne

Chief Justice Warren, and Justice Brennan.”

Justice Goldberg summarized his interpretation of a

Ninth Amendment as follows :*

“I do not mean to imply that the Ninth Amendment is

applied against the State by the Fourteenth. Nor do

I mean to state that the Ninth Amendment constitutes

an independent source of rights protected from in.

fringement by either the State or the Federal Govern.

ment. Rather, the Ninth Amendment shows a belief

of the Constitution’s authors that fundamental rights

exist that are not expressly enumerated and an intent

that the list of rights included there not be deemed

exhaustive.” 381 U.S. at 492.

accuracy

contrasted with that of the antron See tm nt Note,

certain Renaissance of the Ninth Amendment, 33 U. Cu.

g1é (i! (1966) ; Franklin, The Ninth Amendment, 40 Tou. L.

; Symposium Comments on the Griswold Case,

L. Rev. 787 (1962)

** The Note cited above, 33 U. Car. L. Rev. at 825,

same conclusion after an exhaustive study of the Ninth

ment:

“In summary, whether one reads the history of the

foreclosing the ‘imperfect enumeration’ theory, or as

No specific constitutional provision covers the rights to

marry, raise children, travel, attend private school, to

dress a8 one chooses, to pursue one’s chosen profession,

or a host of rights which might someday be invaded by

jegislatures. The framers could hardly be expected to

undertake the herculean task of listing all personal rights

which might be regarded as of equal stature to those more

specifically spelled out. Therefore, it appears, they enacted

the Ninth Amendment.

Recognition of the rights being asserted on this appeal

would not usher in a vast increase in judicial power. What

has been said pertaining to Griswold applies here:

“Griswold v. Connecticut is a reaffirmation of a power

long exercised by the Court in protecting fundamental

rights. It required no judicial roving at large to reach

the conclusion that the freedom of the marital relation-

ship is a part of the bundle of rights associated with

home, family, and marriage—rights supported by prec-

edent, history, and common understanding. For a court

to find that these rights are fundamental, whether

because they are deeply written in the tradition and

conscience of our people, are part of the concept of

ordered liberty, are implicit in the notion of a free

society, or emanate from the totality of the constitu-

tional order, involves no immodest or startling exer-

cise of judicial power. The decision operates within

a narrow sphere. In exercising its power in Griswold

to protect a fundamental personal liberty, the Court,

far from advancing to a new milepost on the high road

to judicial supremacy, was treading a worn and fa-

miliar path.

58 G3

Kauper, Penumbras, Peripheries, Emanations, Things

damental and Things Forgotten: The Griswold Case; ¢

Mion. L. Rev. 235, 258 (1965). And, as Professor Sutha.

land suggested, “[i]f anyone rebels at the thought of; @.

trusting this power to the nine Justices, he may well om.

sider for a little while to whom he would prefer to entros

it; this can be a sobering experience.” Sutherland, Privag

in Connecticut, 64 Micu. L. Rev. 283, 288 (1965).

Accepting, then, that Appellee, physicians similarly sit

uated, and their patients are rightfully asserting funds.

mental rights of constitutional dimetision, it is necessary tp

evaluate the competing interests of the government. _

Two governing principles must be satisfied to sustain

this statute: Its provisions must be (1) narrowly draw,

and (2) supported by compelling governmental interests.

As outlined in the majority and concurring opinions i

Griswold:

“a ‘governmental purpose to control or prevent activities

constitutionally subject to state regulation may not be

achieved by means which sweep unnecessarily broadly

and thereby invade the area of protected freedoms’

NAACP v. Alabama, 377 U.S. 288, 307.” 381 US. at

485.

os e * * a

“In a long series of cases this Court has held that where

fundamental personal liberties are involved, they may

not be abridged by the States simply on a showing

that.a regulatory statute has some rational relation

ship to the effectuation of a proper state purpose

‘Where there is a significant encroachment upon per-

sonal liberty, the State may prevail only upon showing

a subordinating interest which is compelling.’ Bates

y, Little Rock, 361 U.S. 516, 524.” 381 US. at 497

(concurring opinion of Goldberg, J.).

E. Insufficiency of Governmental Interests

1. Interests discernible from legislative and common law

history

Specific legislative history setting out the rationale be-

hind the challenged statute, what the measure sought to

achieve, why, and how, is not available. The current stat-

ute, D.C. Copz §22-201, is derived from D.C. Copz §809, 31

Stat. 1822 (1901), which until 1951 provided a lesser pen-

alty for the identical offense described in the current

statute. The 1901 statute superseded, but was not neces-

sarily derived from an 1872 Act of the Territorial Legis-

lative Assembly.“ The latter appears to have been derived

from an 1868 Maryland statute,” and that from the com-

mon law.

At common law an abortion could be performed without

any penalty prior to the period of pregnancy called “quick-

ening,” i.¢., 16-18 weeks.” This principle was accepted in

Lamp v. Maryland, 67 Md. 524, 10 Atl 298 (1887) (quoting

“Mp, Copz ANN. ch. 179, §2 (1868), exempted “the production

of abortion by a regular practitioner of medicine when, after con-

salting with one or more respectable physicinns, he shall be satisfied

foetus is dead, or that no other method will secure the

Lord Coke), and was the rule in the overwhelming

of other jurisdictions.” From 1828 onward, however, states

began to modify the common law rule by legislation which

prohibited all forms of abortion (other than spon

at all stages of pregnancy.” Maryland, in 1868, and ‘the

Territory of the District, in 1872, were among the —

follow suit.

Careful historical analysis® has shown that the new stat.

utes had a medical purpose and were not designed to com.

pel any particular moral view. Before the turn of the can.

tury all internal surgery was dangerous, for medical sci.

ence, in its infancy, knew nothing about cleanliness. §ir

** See Hunter v. Wheate, 53 App. D.C. 206 (D.C. Cir. Be

Smith v. Gaffard, 31 Ala. 45 (1857) ; Eggart v. Florida, 40 Fla. 527,

25 So. 14 = ae eal Alcorn, 7 Idaho 599, 64 Pac. Joi

Rep, 221

Baath v State, 33 Me. 48, 54 Am. Dec. 607 (1851) ; Commonwealih

v. Bangs, 9 Mass. 387 (1812) ; ; Evans v. People, 49 N.Y. 86 (1872);

Edwards v. State, 79 Neb. 251, 112 N.W. 511 (1907); State y,

Cooper, 22 N.J.L. (2 Zab.) 52, 51 Am. Dec. 248 (1849) ; State

v. Tippie, 89 Ohio St. 35, 105 NE. 75 (1913) ; State v.

86 Ore. 121, 167 Pac. 1019 (1917), appeal dismissed per ., 21

U.S. 563 (1919) ; Gray v. State, 77 Tex. Crim. 221, 178 Hk Be

(1915) ; Miller v. Bennet, 190 Va. 162, 56 S.E.2d 217 (1949) ; State

v. Dickinson, 41 Wis. 299 (1877). See generally Means, The Lew

of New York Concerning Abortion and the Status of the Foetus,

1664-1968: A Case of Cessation of Constitutionality, 14 N.YLF.

411 (1968) [hereinafter Means]. Contrary decisions, based

little or no historical research, are Mills v. Commonwealth, 13

St. 631 (1850); Willis v. O’Brien, 151 W.Va. 628, 153 8.E.2d 178,

cert. denied, 389 U.S. 848 (1967); State v. Slagle, 83 N.C. 69

(1880).

** See, ¢.g., N.Y. Rev. Stat., pt. IV, ch. 1, tit. 6, §§20-22 (1829);

Inu. Rev. Copz, §46 (1827) ; see generally Geo rge, Current Abortion

Laws: and Movements for Reform, 17 W. Res. L. Rav.

371 (1966) ; Lucas, Laws of the United States, in I ABorTION IN 4

CHANGING Wort 127 (R. Hall ed. 1970).

* See Means, supra note 87 passim.

Joseph Lister’s findings on antiseptic techniques were not

printed until 1867, and did not gain acceptance in the major

hospitals of the Eastern United States until nearly 1890.”

Without such information and techniques (whieh we take

for granted today), a simple doctor’s office procedure—

such as the opening of an abscess—could lead to serious in-

fection and even death. Early court decisions on abortion

fully recognized these medical facts." It was recognized

that the woman’s interests were at stake, for all that she

yas as an adult human being, and everything that she

meant to her family. Her actual interests were being pro-

tected in the 1800’s from the dangers of surgery. She was

the victim, not the criminal, and accordingly was never

prosecuted.

Medicine changed rapidly after 1890, but the law was

slow to follow suit. Originally the statutes were passed to

protect the woman’s life and health. Subsequently the same

statutes, by prohibiting medical abortions, had the opposite

* Lister’s work was written up in an 1867 number of The Lancet.

Earlier discoveries along the same lines had been made by Semmel-

weis and Oliver Wendell Holmes, Sr. See Holmes, The Contagious-

& W. Lioyp, A Hunprep Years or Mepicive (1943).

" See, e.g., State v. Murphy, 27 N.Ji. (3 Dutcher) 122, 114-15

(Sup. Ct. 1858) :

“The design of the statute was not to prevent the precurmg ef

abortions, so much as to guard the health and life of the mother

against the consequences of such attempts .. . . It is immaterial

whether the foetus is destroyed, or whether it has quickened or

not.

“The offense of third persons, under the statute, is mainly

against her life and health. The statute regards her as the

victim of crime, not as the criminal; as the object of protec-

tion, rather than of punishment.” [Emphasis added.]

effect and forced a woman into the underground of: ea

medical abortion. Thus, throughout this century, n

ical abortion has been a major cause of maternal

injury, infection, and sterility,"* for the simple reason

physicians would refuse to do medical abortions out of te

of prosecution.

Accordingly, the legal and medical history of abortin

show at least one legitimate governmental concern, ‘the

protection of pregnant women from dangers then inherent

in surgery. In fact, a statute was proposed in New York

in 1828 which would have punished “any surgical opera.

tion .. . unless it appear that the same was necessary for

the ueibierwadina of life... .”* This concern was echoed

as late as 1943 in Williams v. United States, 78 U.S. App.

D.C. 147, 150, 138 F.2d 81, 84 (1943) (“The dangers of

abortion . . . come from . . . incompetent, unscrupulous

practitioners, operating in secrecy, without antiseptic con

ditions. . . .”). Williams, however, was decided only s

few years after curretage began to be used routinely in

hospital treatment of incomplete abortions,“ and at the

same time that antibiotics came into use.”

In addition to concern with surgical dangers, the statute

may have been an effort to enforce a brand of sexual

* Early estimates were that non-medical abortions caused up to

10,000 deaths per year. See J. Bares & E. Zawanzx1, Cremona

Aportion 3-4 (1964). With the advent of antibiotics, however,

500-1000 is a more reliable estimate today. See Hall, Com

in ABORTION AND THE Law 228 (D. Smith ed. 1967).

** 6 N.Y. Revisers’ Notes, pt. IV, ch. 1, tit. 6, §28, at 75 (1828).

* Douglas, Toxic Effects of the Welch Bacillus in Postabortal

Infections, 56 N.Y. State J. Mep. 3673 (1956).

morality that considered reproduction as the only legiti-

mate goal of sexual relations, and this, of course, only

within the marital relationship. Thus, the Williams case

expresses & disapproval of “[a]rguments that abortion

should be permitted to avoid social disgrace or poverty

or illegitimacy. ...” 78 U.S. App. D.C. at 149.

Similarly, the common law and early decisions enforced

a ibition against abortions late in pregnancy, express-

ing the dual concern that late abortions posed increased

hazard to the woman, and termina:2d the development of

the foetus after signs of life had come into view. See

United States v. May, 2 MacArthur (9 D.C.) 512 (1876).

Nowhere, however, is there any historical basis for pro-

jecting any past or present legislative effort to equate

the foetus or embryo in early pregnancy with a “person,”

as that term is used in the Constitution where citizenship

depends upon birth or naturalization.

In light of this sparse legislative history, the final in-

quiry is whether the statute today is narrowly drawn to

serve any compelling governmental interest. As Appellee

has shown before, discussing vagueness, the statute on its

face is far from narrowly drawn to meet any overt interest

expressed in its ambiguous terminology.

2. The statute is not a rational public health measure in

1970

Whether the District’s abortion statute, with its poten-

tially drastic sweep, can be independently justified as pro-

moting public health in 1970 is not even a close question.

The statute clearly does not generate a more healthy female

population. Rather, it creates “a public health problem of

pandemic proportions” * by denying to women the opp

tunity to obtain safe medical treatment in controling

personal reproduction.” oy

As other courts, and all available medical a i

recognized, abortion under appropriate clinical surroun

ings is considerably safer—six or seven timea-_thk ord.

nary childbirth.* Today abortion per se has no ration

relationship to any medical hazards. It is only abortigg

in an unsanitary setting, or when undertaken by a nm

physician, that is dangerous.” Yet, the statute is nots

limited. It sweeps broadly to prevent a potentially a

inclusive class of pregnant women from obtaining abe.

tions under any circumstances whatsoever. There is a

carefully tailored effort to discern the optimum cirem

stances under which abortions are safest. Indeed, a 190

statute could not be expected to have continued validly

today when the health field has advanced beyond all =

% Hall, Abortion in American Hospitals, 57 Au. J. Pre. Hause

1933, 1934 (1967).

** Some will contend that women enna

create their own public health h quandrie re by refning the

compulsory motherhood and

— But that is a bootstrap cunventiess which’ the Ge

not make. The statute itself must be said to create the ot hele

on lems, for its very terms foreclose access to safe medical absr-

tion in many if not most cases of pregnancy.

% See Tietze, Mortality With Contraception and Induced Aber.

tion, 45 Srupres iv Famity PLAaNNine 6 bec ve Sept. 1969) ; Babbits v.

McCann, supra, 310 F. Supp. at 301; Calsfornia v. 1

Cal.2d ——, 458 P.2d 194, 200, 80 Cal. Rptr. 354, 360 ce:

The most comprehensive and recent data on the safety of

cally induced abortions is set out in great detail in Tietze, Abor

tion Laws and Abortion Practices in Europe, Excerpta Mepica

INTERNATIONAL ConGress, Series No. 207 (Apr. 1969).

* See S. Kizzoman & S. KaurMan, INFertiuity in Women 301

(1966), describing non-medical abortion as “one of the most im-

portant causes of subsequent infertility and pelvic disease.”

pottations. In fact, it should be no surprise that a health

measure of 1901 would have the opposite effect today,

namely, that the statute itself creates health problems of

great magnitude.

8, The statute is not rationally related to any legitimate

governmentel policy on control of human sexual be

havior

To some extent, legislative history reflected a moral tone

to the effect that sexual relations, in or out of marriage,

to end in childbirth. An arguable corollary to this

moral tone would be the condemnation of premarital sexual

relationships, which tone assuredly prevailed around the

tarn of the century.

Some might even argue that sexual promiscuity will

be curtailed by restricting abortion to the classes in the

gtatute.° However, an “unhealthy” prostitute can have

ail the abortions she can pay for, while a “healthy” mar-

ried woman must continue to endure one pregnancy after

another, until her “health” breaks down. Government can

directly curtail promiscuity by enforcing its adultery and

fornication laws, if it so chooses. The abortion statute,

however, sweeps broadly to prevent all abortions on

“healthy” women, married and unmarried, whether previ-

ously chaste or promiscuous. Moreover, compulsory preg-

nancy and unwanted childhood are severe penalties to pay

for a single act of “promiscuous” intercourse. In related

1 In response to this argument, Dr. Kenneth Ryan stated: “The

fear that the availability of abortion will lead to promiscuity is

sheer nonsense.” Ryan, Humane Abortion Laws and the Health

Needs of Society, 17 W. Res. L. Rev. 424, 432 (1965).

The earliest cases specifically disavowed enforcement of Vic-

torian “morals and deceny” as a possible object of the abortion

laws, emphasizing that the central purpose was “to guard the

health and life of the female... .” State v. Gedicke, 43 N.J.L.

(14 Vroom) 86, 89 (Sup. Ct. 1881).

settings, it has been held that “promiscuity preventigg

cannot support a broad and sweeping statute. See Kingy,

Smith, 392 U.S. 309, 320 (1968); Griswold v. C :

381 U.S. 479, 498 (1965) (Mr. Justice Goldberg, conewr.

ring). Indeed, all evidence seems to indicate that the vag

majority of abortions are sought by married women yi

two or more children.

4. The statute is not designed to equate the early producy

of conception with human persons

Briefs filed by two amict curiae have argued at length

that Congress has made a legislative judgment, or should

have, that the products of conception are to be equated

with human persons, from the time of fertilization of th

ovum. There is, however, no basis in historic or legislative

fact to infer that Congress even considered such a possi-

bility. Nor is there any rational justification for compé-

ling a pregnant woman to accept such a metaphysical ap.

proach, when contrary to her personal beliefs.

Amici’s argument primarily fails because it has never

been considered cogent by the Congress. As Appellee has

previously shown, the statute was enacted with quite a dif.

ferent purpose in mind, namely the protection of a woman's

health from the dangers inherent many years ago in sur-

gical procedures. Induced abortion, because medically dan-

gerous, was prohibited unless necessary to avoid medical

complications equal to or greater than those incident to

continued pregnancy and eventual childbirth. The focus

was not and could not have been the extension of legal

“rights” to a developing embryo or fetus. If Congress had

101 See Tietze, supra note 42, at 206 (Hungary, 86%

Czechoslovakia, 82% married). American data are in

P. GzsHarD, PREGNANCY, BirtH AND ABORTION 96-99 (1958).

been acting as amici suggest, there would have been no

reason for differentiating between an embryo according

to the health condition of the pregnant woman. It would

be strange to legislate “rights” for an embryo only when

the pregnant woman was “healthy,” but not when she was

“gnhealthy.” If the embryo had been accorded “rights”

‘or to those of the woman under any circumstances,

the rights could hardly have been considered secondary

simply because the woman became “unhealthy” as a con-

sequence of pregnancy. If one imagines, for example, the

case of pregnancy caused by rape, forced childbirth would

invariably damage the woman’s mental if not physical

health. The fetus, however, would be no different, aside

from the tragic events of its origin, than a fetus in a per-

fectly healthy woman. Yet, the fetus in the healthy woman

would have “rights” superior to those of the woman herself.

The fact that Congress classified the pregnant woman

as the “victim” rather than the criminal is also a clear indi-

cation of legislative intent. In no case is the woman pun-

ished, although she is always the very party who seeks out

and persuades the physician to perform the abortion. If

Congress had been concerned with bestowing rights on a

fetus, there would have been no reason whatever for ex-

empting the woman from liability. Indeed, prosecution of

women who obtain abortions is unknown to American law.

Since the statute was enacted to protect the woman from

dangers in surgery, there was little reason to hold her re-

sponsible criminally. Government does not punish the vic-

tim, but only the offender. The victim, according to Con-

gress, is the woman, and the offender is the physician.

Whatever “rights” may accrue thereby to an embryo do so

indirectly, and not by any apparent design of Congress.

Amici have endeavored to argue, by reference to deg.

sions in one or more state courts, that certain property

and tort “rights” are bestowed upon an embryo. Again

private law decisions from state courts cast little light upm,

the mtent of Congress in enacting a statute restricting

abortion to a limited class of pregnant women. Moreover,

the presupposition of all such decisions is that a human

person has rights that relate back to incidents occurring be

fore birth. The common law treated abortion as a private

matter of the woman until advanced stages of pregmaney.

This common law developed side-by-side with tort an

property law. Neither contradicts the other. It is om

thing to hold that injuries to a viable fetus give rise, after

birth, to an action for negligence. It is quite another

suggest that these rights entail recognition of the embryo

as a human person from the moment at which the injury oc

curred. Congress has not so acted.

Finally, aneici have attempted to point out various arge

able similarities between developing embryos and their sub

sequent products, human persons. In addition to such re

sembiances, there are an equal or greater number of differ.

ences. Congress, however, has never engaged in the process

of weighing these differences versus similarities. Amis

wholly fail to explain how it ean be inferred that Congres

has or would make the value judgments urged in ther

Briefs. If Congress has—like the American Medical Asso

ciation and Commissioners on Uniform State Laws—dis

agreed with the values asserted by amici, it is not the

province of this Court to overturn such a legislative judg-

ment. In particular, Appellee fails to understand how the

fertilized ovum, microscopic in size, could suddenly be em

dowed with all of the rights and immunities suggested by

amici. The living ovum, and equally living sperm, possess

tial life in the same sense that a fertilized ovum sub-

sequently possesses life. However, this life is not suffi-

dently developed to have come within the recognition of

iw. As Justice Clark has stated:

“The unfertilized egg has life, and if fertilized, it takes

on human proportions. But the law deals in reality,

not obscurity—the known rather than the unknown.

When sperm meets egg life may eventually form, but

quite often it does not. The law does not deal in

speculation.” ***

It requires no speculation to discern that Congress has

never accepted the drastic position argued by amict.

The above appear to be the only remotely relevant justi-

feations the Government might offer to support its present

statutory restrictions on abortion. As shown, none amounts

to “‘a subordinating [Government] interest which is com-

pelling....’” None embodies the requisite “‘[p]recision

of regulation. ...’” Griswold v. Connecticut, 381 US. 479,

497, 498 (1965). Accordingly, unless the Government can

ing forth compelling justifications of another variety, the

restrictive classifications must be struck from the statute

and abortion made available to the “healthy” woman as

well as the “unhealthy.”

| Clark, supra note 34, at 9-10.

CONCLUSION

For the reasons set out in this Brief, the Judgmey

below dismissing the indictment should be affirmed,

Respectfully submitted,

Josern Srrvick

1511 K Street, N.W.

Washington, D.C. 20005

Joszern L. Nets

1819 H Street, N.W.

Washington, D.C. 20006

Roy Lucas

Four Patchin Place

New York, New York 10011

Attorneys for Milan M. Vuitch, MD.

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