Opinion — United States v. Vuitch

SUPREME COURT OF THE UNITED STATES

No. 84.—Octoser Trrm, 1970

United States, Appellant,)On Appeal From the United

v. States District Court for

Milan Vuitch. the District of Columbia.

[April 21, 1971]

Mn. Justice Buack delivered the opinion of the Court.“

Appellee Milan Vuitch, a licensed physician, was in-

dicted in the United States District Court for the District

of Columbia for producing and attempting to produce

abortions in violation of 22 D. C. Code 201. Before

trial, the district judge granted Vuitch’s motion to dis-

miss the indictments on the ground that the District

of Columbia abortion law was unconstitutionally vague.

305 F. Supp. 1032 (DCDC 1969). The United States ap-

pealed to this Court under the Criminal Appeals Act,

18 U. S. C. § 3731. We postponed decision on jurisdiction

to the hearing on the merits, 397 U. S. 1061, and requested

the parties to brief and argue specified questions on that

issue. 399 U.S.923. We hold that we have jurisdiction

and that the statute is not unconstitutionally vague. We

reverse.

I

The first question is whether we have jurisdiction

under the Criminal Appeals Act to entertain this direct

appeal from the United States District Court for the

TIA Curr Justice, Mr. Justice Dovatas, Mr. Justice

Stewart, and Mr. Justice Wurre join in Part I of this opinion.

Tae Cur Justice, Mr. Justice Hartan, Mr. Justice Wnrrx,

and Mr. Justice Buackmun join in Part II of this opinion.

2 UNITED STATES v. VUITCH

District of Columbia. That Act? gives us jurisdiction

over direct appeals from district court judgments in all

criminal cases . . . dismissing any indictinent where such

decision is based upon the invalidity . . . of the statute

upon which the indictment is found 1” 18 U. 8. C.

§ 3731. The decision appealed from is a dismissal of an

indictment on the ground that the District of Columbia

abortion law, on which the indictment was based, is

unconstitutionally vague. This abortion statute, 22 D.C,

Code 201, is an Act of Congress applicable only in the

District of Columbia and we suggested that the parties

argue whether a decision holding unconstitutional such

a statute is appealable directly to this Court under the

Criminal Appeals Act. The literal wording of the Act

plainly includes this statute, even though it applies only

to the District. A piece of legislation so limited is never-

theless a “statute” in the sense that it was duly enacted

into law by both Houses of Congress and was signed by

the President. And the Criminal Appeals Act contains

no language that purports to limit or qualify the term

“statute.” On the contrary, the Act authorizes govern-

ment appeals from district courts to the Supreme Court

in “all criminal cases” where a district court judgment

dismissing an indictment is based upon the invalidity of

the statute on which the indictment is founded.

1 The Act states in pertinent part:

“An appeal may be taken by and on behalf of the United States

from the district courts direct to the Supreme of the United

States in all criminal cases in the following i :

“From a decision or judgment setting aside, or dismissing any in-

dictment or information, or any count thereof, where such decision

of judgment is based upon the invalidity or construction of the

statute upon which the indictment or information is founded. . . .”

18 U. S. C. § 3731.

_

UNITED STATES v. VUITCH 3

An examination of the legislative history of the Crim-

inal Appeals Act and its amendments suggests no reason

why we should depart from the Act’s literal meaning and

exclude D. C. statutes from its coverage. The commit-

tee reports and floor debates contain no discussion indi-

cating that the term “statute” does not include statutes

applicable only to the District of Columbia. We there-

fore conclude that we have jurisdiction over this appeal

under the Criminal Appeals Act.

Our Brother HARLAN has argued in dissent that we do

not have jurisdiction over this direct appeal. He sug-

gests that such a result is supported by the decision in

United States v. Burroughs, 289 U. S. 159 (1933), the

policy underlying the Criminal Appeals Act, and the

canon of construction that statutes governing direct ap-

peals to this Court should be strictly construed.

It is difficult to see how the Burroughs decision lends

much force to his argument, since that case held only that

the term “district court” in the Criminal Appeals Act

did not include the then-existing Supreme Court of the

District of Columbia. Id., at 163-164. The dissent goes

on to suggest the Act should be construed in light of the

Congressional purpose of “avoiding inconsistent enforce-

ment of criminal laws.” Post, at 12. This purpose

would not be served by our refusing to decide this case

now after it has been orally argued. In the last several

years, abortion laws have been repeatedly attacked as

unconstitutionally vauge in both state and federal courts

with widely varying results. A number of these cases

are now pending on our docket. A refusal to accept jur-

isdiction here would only compound confusion for doctors,

2 See H. Conf. Rep. No. 8113, 59th Cong., 2d Sess.; H. R. Rep. No.

2119, 59th Cong., Ist. Sess.; H. R. Rep. No. 45 and S. Rep. No. 868,

77th Cong., Ist. Sess.; H. Conf. Rep. No. 2052, 77th Cong., 2d Sess.

4 UNITED STATES v. VUITCH

their patients, and law enforcement officials. As this case

makes abundantly clear, a ruling on the validity of a

statute applicable only to the District can contribute to

great disparities and confusion in the enforcement of crim-

inal laws. Finally, my Brother HAnLAx's dissent also

appears to rely on the fact that this Court has never

accepted jurisdiction over a direct appeal under the

Criminal Appeals Act involving the validity of a District

of Columbia statute. Post, at 13. Since this Court has

never either accepted or rejected jurisdiction of such an

appeal, it is difficult to see how the complete absence of

precedent in this Court lends any weight whatever to his

argument. Neither previous cases nor the purpose be-

hind the Criminal Appeals Act provides any satisfactory

reason why the term “statute” should not include those

statutes applicable only in the District of Columbia.

One other procedural problem remains. We asked the

parties to brief the question whether the Government

could have appealed this case to the Court of Appeals

for the District of Columbia under 23 D. C. Code 105,

and, if so, whether we should refuse to entertain the

appeal here as a matter of sound judicial administration.

That D. C. Code provision states:

In all criminal prosecutions the United States

shall have the same right of appeal that is given to

the defendant ... .”

The relationship between the Criminal Appeals Act and

this Code section was considered in Carroll v. United

States, 354 U. S. 394, 411, where the Court concluded:

“{C]riminal appeals by the Government in the

District of Columbia are not limited to the categories

set forth in 18 U. S. C. 3731 [the Criminal Appeals

Act], although as to cases of the type covered by

that special jurisdictional statute its explicit direc-

A

UNITED STATES v. VUITCH 5

tions will prevail over the general terms of [23 D. C.

Code 105].”

Since we have concluded above that this appeal is cov-

ered by the Criminal Appeals Act, it would seem to fol-

low from Carroll that the Act’s provisions control and

no appeal could have been taken to the Court of Appeals.

Although Carroll seems to be dispositive, it has been

suggested that it may now be limited by United States v.

Sweet, 399 U. S. 517 (1970), which contains some lan-

guage suggesting that the Government may be empow-

oad to take an appeal to the Court of Appeals under

23 D. C. Code 105, even when a direct appeal would

be proper here under the Criminal Appeals Act. Id.,

at 518. We do not elaborate upon that suggestion. We

only hold that once an appeal is properly here under the

Criminal Appeals Act, we should not refuse to consider

it because it might have been taken to another court.

II

We turn now to the merits. Appellee Milan Vuitch

was indicted for producing and attempting to produce

abortions in violation of 22 D. C. Code 201. That Act

provides in part:

“Whoever, by means of any instrument, medicine,

drug or other means whatever, procures or produces

or attempts to procure or produce an abortion or

miscarriage on any woman, unless the same were

done as necessary for the preservation of the mother’s

life or health and under the direction of a com-

petent licensed practitioner of medicine, shall be

imprisoned in the penitentiary not lees than one

year or not more than ten years;

Without waiting for trial, the District Judge dismissed

the indictment on the ground that the abortion statute

6 UNITED STATES v. VUITCH

was unconstitutionally vague. In his view, set out sub-

stantially in full below,’ the statute was vague for two

principal reasons:

1. The fact that once an abortion was proved a physi-

cian “is presumed guilty and remains so unless a jury

The District Judge stated:

. It is suggested that these words [as necessary for the preserva-

tion of the mother’s life or health] are not precise; that, as inter-

preted, they improperly limit the physician in carrying out his

professional responsibilities; and that they interfere with a woman's

right to avoid childbirth for any reason. The word “health” is not

abortion statute now prevailing. The Court of Appeals established

by such early cases as Peckham v. United States, 96 U. 8. App. D. C.

312 (1955), cert. denied, 350 U. 8. 912, and Williams v. United States,

78 U. 8. App. D. C. 147 (1943), that upon the Government estab-

lishing that a physician committed an abortion, the burden shifted

to the physician to justify his acts. In other words, he is presumed

guilty and remains so unless a jury can be persuaded that his acts

were necessary for the preservation of the woman’s life or health.

These holdings, which may well offend the Fifth Amendment of the

Constitution, as interpreted in recent decisions such as Leary v.

United States, 306 U. S. 89 Sup. Ct. 1532, 23 L. Ed. 2d 658 (1965),

and United States v. Gainey, 380 U. S. 63, 85, Sup. Ct. 754, 13 L. Ed.

2d 658 (1965), also emphasize the lack of necessary precision in this

criminal statute. The jury’s acceptance or nonacceptance of an

physical health or combination of the two is required to make an

abortion conducted by a competent physician legal or illegal under

the Code.. 305 F. Supp. 1032, at 1034.

UNITED STATES v. VUITCH 7

can be persuaded that his acts were necessary for the

preservation of the woman’s life or health.”

9. The presence of the “ambivalent and uncertain

word health.

In concluding that the statute places the burden of

ion on the defendant once the fact of an abor-

tion has been proved, the court relied on Williams v.

United States, 138 F. 2d 81 (CADC 1943). There the

Court of Appeals for the District of Columbia held that

the prosecution was not required to prove as part of its

case in chief that the operation was not necessary to

preserve life or health. Id., at 81, 83. The court indi-

cated that once the prosecution established that an abor-

tion had been performed the defendant was required “to

come forward with evidence which with or without other

evidence is sufficient to create reasonable doubt of guilt.”

Id., at 84. The District Court here appears to have read

Williams as holding that once an abortion is proved, the

burden of persuading the jury that it was legal (i. e.,

necessary to the preservation of the mother’s life or

health) is cast upon the physician. Whether or not this

is a correct reading of Williams, we believe it is an

erroneous interpretation of the statute. Certainly a stat-

ute that outlawed only a limited category of abortions

but “presumed” guilt whenever the mere fact of abortion

was established, would at the very least present serious

constitutional problems under this Court’s previous deci-

sion interpreting the Fifth Amendment. Tot v. United

States, 319 U. S. 463 (1943); Leary v. United States,

395 U. S. 6, 36 (1969). But of course statutes should

be construed whenever possible so as to uphold their

constitutionality.

The trial court also cited Peckham v. United States, 226 F. 2d

34 (CADC 1955), as dealing with the D. C. abortion law. However,

the opinion in that case does not discuss the burden of proof under

the statute.

8 UNITED STATES v. VUITCH

The statute does not outlaw all abortions, but only

those which are not performed under the direction of

a competent, licensed physician, and those not necessary

to preserve the mother’s life or health. It is a general

guide to the interpretation of criminal statutes that when

an exception is incorporated in the enacting clause of

a statute, the burden is on the prosecution to plead and

prove that the defendant is not within the exception.

When Congress passed the District of Columbia abortion

law in 1901 and amended it in 1953, it expressly author-

ized physicians to perform such abortions as are necessary

to preserve the mother’s “life or health.” Because abor-

tions were authorized only in more restrictive circum- ©

stances under previous D. C. law, the change must repre-

t a judgment by Congress that it is desirable that

women be able to obtain abortions needed for the preser-

vation of their lives or health.“ It would be highly

anomalous for a legislature to authorize abortions neces-

sary for life or health and then to demand that a doctor,

upon pain of one to ten years’ imprisonment, bear the

burden of proving that an abortion he performed fell

within that category. Placing such a burden of proof

on a doctor would be peculiarly inconsistent with society's

notions of the responsibilities of the medical profession.

Generally, doctors are encouraged by society’s expecta-

tions, by the strictures of malpractice law and by their

own professional standards to give their patients such

treatment as is necessary to preserve their health. We

are unable to believe that Congress intended that a

physician be required to prove his innocence. We there-

fore hold that under 22 D. C. Code 201, the burden is on

Be 1901 the existing statute allowed abortion only “for the

purpose of preserving the life of any woman pregnant .

Abert, The Compiled Statutes in Force in the District of Columbia,

e. XVI, pp. 158-159 (1894).

UNITED STATES v. VUITCH 9

the prosecution to plead and prove than an abortion was

not “necessary for the preservation of the mother’s life

or health.”

There remains the contention that the word “health”

is so imprecise and has so uncertain a meaning that it

fails to inform a defendant of the charge against him and

therefore the statute offends the Due Process Clause of

the Constitution. See, e. g., Lanzetta v. New Jersey, 306

U. S. 451 (1939). We hold that it does not. The trial

court apparently felt that the term was vague because

there “is no indication whether it includes varying de-

grees of mental as well as physical health.” 305 F. Supp.

1032, at 1034. It is true that the legislative history of

the statute gives no guidance as to whether “heal a

refers to both a patient’s mental and physical state.

The term “health” was introduced into the law in 1901

when the statute was enacted in substantially its present

form. The House Report on the bill contains no dis-

cussion of the term “health” and there was no Senate

report. Nor have we found any District of Columbia

cases prior to this district court decision that shed any

light on the question. Since that decision, however, the

issue has been considered in Doe v. General Hospital of

the District of Columbia, 313 F. Supp. 1170 (DCDC 1970).

There District Judge Waddy construed the statute to

permit abortions “for mental health reasons whether or

not the patients had a previous history of mental defects.”

Id., at 1174-1175. The same construction was followed

by the United States Court of Appeals for the District

of Columbia in further proceedings in the same case.

Doe v. General Hospital of the District of Columbia, 434

F. 2d 423; 434 F. 2d 427 (CADC 1970). We see no

reason why this interpretation of the statute should not

*H. R. Rep. No. 1017, 56th Cong., Ist Seas.

10 UNITED STATES ». wrd

be followed. Certainly this construction accords with

the general usage and modern understanding of the word

“health,” which includes phychological as well as physi-

cal well-being. Indeed Webster's Dictionary, in accord

with that common usage, properly defines health as “the

state of being sound in body or mind.” Viewed in this

light, the term “health” presents no problem of vague-

ness, Indeed, whether a particular operation is necessary

for a patient’s physical or mental health is a judgment

that physicians are obviously called upon to make rou-

tinely whenever surgery is considered.’

We therefore hold that properly construed the District

of Columbia abortion law is not unconstitutionally vague,

ments on that ground. Appellee has suggested that

there are other reasons why the dismissal of the indict-

ment should be affirmed. Essentially, these arguments

are based on this Court’s decision in Griswold v. Con-

necticut, 381 U. S. 479 (1965). Although there was some

reference to these arguments in the opinion of the court

below, we read it as holding simply that the statute was

void for vagueness because it failed in that court's

language to “give that certainty which due process of law

considers essential in a criminal statute.” 305 F.-Supp.

1082, at 1034. Since that question of vagueness was the

only issue passed upon by the District Court it is the

Our Brother Dovatas appears to fear that juries might convict

doctors in any abortion case simply because some jurors believe all

abortions are evil. Of course such a danger exists in all criminal

established methods defendants may use to protect themselves against

such jury prejudice: continuances, changes of venue, challenges to

prospective jurors on voir dire, and motions to set aside verdicts

which may have been produced by prejudice. And of course a court

should always set aside a jury verdict of guilt when there is not

evidence from which a jury could find a defendant guilty beyond

a reasonable doubt.

UNITED STATES v. VUITCH 1¹

only issue we reach here. United States v. Borden Co.,

908 U. S. 188 (1939) ; United States v. Petrillo, 332 U. 8.

1 (1947); United States v. Blue, 384 U. S. 251, 256

(1966).

The judgment is reversed and the case remanded for

further proceedings not inconsistent with this opinion.

Reversed.

SUPREME COURT OF UNITED STATES

No. 84.—Ocroser Tzrm, 1970

United States, Appellant,)On Appeal From the United

v. States Distriet Court for

Milan Vuitch. The Distriet of Columbia.

[April 21, 1971]

Mr. Justice WHIT#, concurring.

I join the Court’s opinion and judgment. As to the

facial vagueness argument, I have these few additional

words. This case comes to us unilluminated by facts

or record. The District Court’s holding that the District

of Columbia statute is unconstitutionally vague on its

face because it proscribes all abortions except those neces-

sary for the preservation of the mother’s life or health

was a judgment that the average person could not under-

stand which abortions were permitted and which were

prohibited. But surely the statute puts everyone on

adequate notice that the health of the mother, whatever

that phrase means, was the governing standard. It

should also be absolutely clear that a doctor is not free

to perform abortions on request without considering

whether the patient’s health required it. No one of aver-

age intelligence could believe that under this statute

abortions not dictated by health considerations are legal.

Thus even if the “health” standard were unconstitution-

ally vague, which I agree is not the case, the statute is

not void on its face since it reaches a class of cases in

which the meaning of “health” is irrelevant and no

possible vagueness problem could arise. We do not, of

course, know whether this is one of those cases. Until

we do facial vagueness claims must fail. Cf. United

States v. National Dairy Corp., 372 U. S. 29 (1963).

SUPREME COURT OF THE UNITED STATES

No. 84.—Ocroszr Trzrm, 1970

United ~~ Appellant,)On Appeal From the United

States District Court for

Milan "Vaiteh. the District of Columbia.

{April 21, 1971]

Mn. Justice Dova.as, dissenting in part.

While I agree with Part I of the Court’s opinion that

we have jurisdiction over this appeal, I do not think the

statute meets the requirements of procedural due process.

The District of Columbia Code makes it a felony for

a physcian to perform an abortion “unless the same were

done as necessary for the preservation of the mother’s

life or health.” 22 D. C. Code 201.

I agree with the Court that a physician—wthin the

limits of his own expertise—would be able to say that an

abortion at a particular time performed on a designated

patient would or would not be necessary for the “preser-

vation” of her “life or health.” That judgment, however,

is highly subjective, dependent on the training and insight

of the particular physician and his standard as to what

is “necessary” for the “preservation” of the mother’s

“life or health.”

The answers may well differ, physician to physician.

Those trained in conventional obstetrics may have one

answer; those with deeper psychiatric insight may have

another. Each answer is clear to the particular physi-

cian. If we could read the Act as making that determina-

tion conclusive, not subject to review by judge and by

jury, the case would be simple, as Mr. Justice Stewart

points out. But that does such violence to the statutory

2 UNITED STATES v. VUITCH ae

scheme that I believe it is beyond the range of judicial

interpretation so to read the Act. If it is to be revised

in that manner, Congress should do it.

Hence I read the Act, as did the District Court, ag

requiring submission to court and jury of the physician’s

decision. What will the jury say? The prejudices of

jurors are customarily taken care of by challenges for

cause and by preemptory challenges. But vagueness of

criminal statutes introduces another element that is un-

controllable. Are the concepts so vague that possible

offenders have no safe guidelines for their own action?

Are the concepts so vague that jurors can give them a

gloss and meaning drawn from their own predilections

and prejudices? Is the statutory standard so easy to

manipulate that although physicians can make good-

faith decisions based on the standard, juries can none-

theless make felons out of them?

The Court said in Lanzetta v. New Jersey, 306 U. 8.

451, 453, that a “. . . statute which either forbids or re-

quires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its mean-

ing and differ as to its application violates the first es-

sential of due process.”

A three-judge court in evaluating a Texas statutory

standard as to whether an abortion was attempted “for

the purpose of saving the life of the mother” said:

“How likely must death be? Must death be cer-

tain if the abortion is not performed? Is it enough

that the woman could not undergo birth without an

ascertainably higher possibility of death than would

normally be the case? What if the woman threat-

ened suicide if the abortion was not performed?

How imminent must death be if the abortion is not

performed? Is it sufficient if having the child will

shorten the life of the woman by a number of years?”

Roe v. Wade, 314 F. Supp. 1217, 1223.

UNITED STATES v. VUITCH 3

The Roe case was followed by a three-judge court in

Doe v. Scott, — F. Supp. —, which struck down an

Illinois statute which sanctioned an abortion “necessary

for the preservation of a woman’s life.” And see People

y. Belous, 71 Cal. 2d 954, 458 Pac. 2d 194.

A doctor may well remove an appendix far in advance

of rupture in order to prevent a risk that may never

materialize. May he do the same under this abortion

statute?

May he perform abortions on unmarried woman who

want to avoid the “stigma” of having an illegitimate

child? Is bearing a “stigma” a “health” factor? Only

in isolated cases? Or is it such whenever the woman is

unmarried?

Is any unwanted pregnancy a “health” factor because

it is a source of anxiety?

Is an abortion “necessary” in the statutory sense if

the doctor thought that an additional child in a family

would unduly tax the mother’s physical well-being by

reason of the additional work which would be forced upon

her?

Would a doctor be violating the law if he performed an

abortion because the added expense of another child in

the family would drain its resources, leaving an anxious

mother with an insufficient budget to buy nutritious food?

Is the fate of an unwanted child or the plight of the

family into which it is born relevant to the factor of

the mother’s “health?”

Mr. Justice Holmes, in holding that “unreasonable”

restraint of trade was an adequate constitutional stand-

ard of criminality, said in Nash v. United States, 229

U. S. 373, 377, that “the law is full of instances where

a man’s fate depends on his estimating rightly, that is,

as the jury subsequently estimates it, some matter of

degree. If his judgment is wrong, not only may he

4 UNITED STATES v. VUITCH

incur a fine or a short imprisonment, ao hess ee

incur the penalty of death.”

Slo woete (tts — ceneicaate reguiatitins wal

are restrained by few, if any, constitutional guarantees,

Where, however, constitutional guarantees are impli-

cated, the standards of certainty are more exacting.

Winters v. New York, 333 U. S. 507, 514, 519, held

void-for-vagueness a state statute which as construed

made it a crime to print stories of crime “so massed as

to incite to crime,” since such a regulatory scheme

trenched on First Amendment rights of the press.

The standard of “sacrilegious” can be used in such

accordion-like way as to infringe on religious rights pro-

tected by the First Amendment. Joseph Burstyn, Inc.

v. Wilson, 343 U. S. 495, 505.

The requirement of a “narrowly drawn” statute when

the regulation touches a protected constitutional right

(Cantwell v. Connecticut, 310 U. S. 296, 311; Thornhill

v. Alabama, 310 U. S. 88, 100) is only another facet of

the void-for-vagueness problem.

What the Court held in Herndon v. Lowry, 301 U. 8.

242, is extremely relevant here. The ban of publications

made to incite insurrection was held to suffer the vice of

vagueness:

“The statute, as construed and applied in the ap-

pellant's trial, does not furnish a sufficiently ascer-

tainable standard of guilt... . Every person who

attacks existing conditions, who agitates for a change

in the form of government, must take the risk that

if a jury should be of opinion he ought to have

foreseen that his utterances might contribute in any

measure to some future forcible resistance to the

existing government he may be convicted of the

offense of inciting insurrection. ... The law, a

UNITED STATES v. VUITCH 5

thus construed, licenses the jury to create its own

standard in each case.” Id., 261, 262, 263. (Italics

added.)

If these requirements of certainty are not imposed

then the triers of fact have “a power to invade imper-

ceptibly (and thus unreviewably) a realm of constitu-

tionally protected personal liberties.” Amsterdam, The

Void-For-Vagueness Doctrine in the Supreme Court, 109

U. Pa. L. Rev. 67, 104 (1960).

Abortion touches intimate affairs of the family, of

marriage, of sex, which in Griswu/d v. Connecticut, 381

U. S. 479, we held to involve rights associated with sev-

eral express constitutional rights and which are summed

up in “the right of privacy.” They include the right to

procreate (Skinner v. Oklahoma, 316 U. 8. 535), the right

to marry across the color line (Loving v. Virginia, 388

U. S. 1), the intimate familial relations between children

and parents (Meyer v. Nebraska, 262 U. S. 300; Levy

v. Louisiana, 391 U. S. 68, 71-72). There is a compelling

personal interest in marital privacy and in the limita-

tion of family size. And on the other side is the belief

of many that the fetus, once formed, is a member of

the human family and that mere personal inconvenience

cannot justify his destruction. This is not to say that

government is powerless to legislate on abortions. Yet

the laws enacted must not trench on constitutional guar-

antees which they can easily do unless closely confined.

Abortion statutes deal with conduct which is heavily

weighted with religious teachings and ethical concepts.’

1“There remains the moral issue of abortion as murder. We

submit that this is insoluble, a matter of religious philosophy and

religious principle and not a matter of fact. We suggest that those

who believe abortion is murder need not avail themselves of it. On

the other hand, we do not believe that such conviction should limit

time at which the fetus becomes a human organism. The Reverend

Joseph F. Donseel of Fordham University admitted that no one can

determine with certainty the exact moment at which ‘ensoulment’

occurs, but we must deal with the moral problems of aborting a fetus

even if it has not taken place. Many Roman Catholics believe that

the soul is a gift of God given at conception. This leads to the

conclusion that aborting a pregnancy at any time amounts to the

taking of a human life and is therefore against the will of God.

Others, including some Catholics, believe that abortion should be

legal until the baby is viable, i. ¢., able to support itself outside the

womb. In balancing the evils, the latter conclude that the evil of

destroying the fetus is outweighed by the social evils accompanying

forced pregnancy and childbirth.” Religion, Morality and Abortion:

mother’s life or health” become free-wheeling concepts,

too easily taking on meaning from the juror’s predilections

or religious prejudices.

I would affirm the dismissal of this indictment and

leave to the experts the drafting of abortion laws“ that

protect good-faith medical practitioners from the treach-

eries of the present law.

(dissenting opinion). And see the dissent of Mr. Justice Biacx in

Ginaburg v. United States, 383 U. S. 463, 477.

Clark, supra n. 2, at 10-11.

Cf. New Vork 's new abortion law effective July 1, 1970, 39

McKinney’s Consol. L. § 125.05:

“An abortional action is justifiable when committed upon a female

with her consent by a duly licensed physician (a) under a reason-

able belief that such is necessary to preserve her life, or, (b) within

twenty-four weeks from the commencement of her pregnancy. A

pregnant female’s commission of an abortional act upon herself is

justifiable when she acts upon the advice of a duly licensed physician

(1) that such act is necessary to preserve her life, or, (2) within

twenty-four weeks from the commencement of her pregnancy. The

submission by a female to an abortional act is justifiable when she

believes that it is being committed by a duly licensed physician, act-

ing under a reasonable belief that such act is necessary to preserve

eer life, or, within twenty-four weeks from the commencement of

her pregnancy.” And see Hall, The Truth About Abortion in New

York, Columbia Forum, Winter 1970, p. 18; Schwartz, The Abor-

tion Laws, 67 Ohio St. Med. J. 33 (1971).

SUPREME COURT OF THE UNITED STATES

No. 84.—Ocroszr Term, 1970

United eae Appellant,}On Appeal From the United

States District Court for

Milan "Vuiteb. the District of Columbia.

{April 21, 1971]

Mr. Justice Haruan, with whom Mr. Justice Bren-

NAN, Mr. JusTicE MARSHALL, and Mr. Justice BLAcx-

MUN join, dissenting as to jurisdiction.

Appellee Vuitch was indicted in the United States Dis-

trict Court for the District of Columbia for violations

of 22 D. C. Code 201, the District of Columbia abortion

statute. This statute is applicable only within the Dis-

trict of Columbia. On pretrial motion by Vuitch, the

indictments were dismissed on the ground that the abor-

tion statute was unconstitutionally vague. The United

States appealed directly to this Court under the terms

of the Criminal Appeals Act of 1907, 18 U. S. C. § 3731,

relying on the provision allowing direct appeal “[f]rom a

decision or judgment setting aside, or dismissing any in-

dictment or information, or any count thereof, where such

decision or judgment is based upon the invalidity or con-

struction of the statute upon which the indictment or

information is founded.“ It is not contested that, but

for this provision of the Criminal Appeals Act, the Gov-

ernment would have a right of appeal to the Court of

1 The text of 18 U. S. C. § 3731 was as follows:

“An appeal may be taken by and on behalf of the United States

from the district courts direct to the Supreme Court of the United

States in all criminal cases in the following instances:

“From a decision or judgment setting aside, or dismissing any in-

dictment or information, or any count thereof, where such decision

or judgment is based upon the invalidity or construction of the

statute upon which the indictment or information is founded.

“From a decision arresting a judgment of conviction for insuffi-

ciency of the indictment or information, where such decision is based

2 UNITED STATES v. VUITCH

Appeals for the District of Columbia under 23 D. C. Code

105, which provides:

“Tn all criminal prosecutions the United States or

the District of Columbia, as the case may be, shall

upon the invalidity or construction of the statute upon which the

indictment or information is founded.

“From the decision or judgment sustaining a motion in bar, when

the defendant has not been put in jeopardy.

“An appeal may be taken by and on behalf of the United States

from the district courts to a court of appeals in all criminal cases, in

the following instances:

“From a decision or judgment setting aside, or dismissing any in-

dictment or information, or any count thereof except where a direct

appeal to the Supreme Court of the United States is provided by

“From a decision arresting a judgment of conviction except where

a direct appeal to the Supreme Court of the United States is pro-

vided by this section.

“The appeal in all such cases shall be taken within thirty days after

the decision or judgment has been rendered and shall be diligently

prosecuted.

“Pending the prosecution and determination of the appeal in the

foregoing instances, the defendant shall be admitted to bail on his

own recognizance.

“If an appeal shall be taken, pursuant to this section, to the Su-

preme Court of the United States which, in the opinion of that Court,

should have been taken to a court of appeals, the Supreme Court

shall remand the case to the court of appeals, which shall then have

jurisdiction to hear and determine the same as if the appeal had

been taken to that court in the first instance.

“If an appeal shall be taken pursuant to this section to any court

of appeals which, in the opinion of such court, should have been

taken directly to the Supreme Court of the United States, such court

shall certify the case to the Supreme Court of the United States,

which shall thereupon have jurisdiction to hear and determine the

case to the same extent as if an appeal had been taken directly to

that Court.”

As noted in United States v. Weller, No. 77, October Term 1970

(decided Feb. 24, 1971), these provisions were amended by § 14 (a)

of the Omnibus Crime Control Act of 1970, 84 Stat. 1890 (1971).

But cases begun in the District Court before the new statute took

effect are not affected. See United States v. Weller, supra, at n. 1.

UNITED STATES v. VUITCH 3

have the same right of appeal that is given to the

defendant, including the right to a bill of exceptions:

Provided, That if on such appeal it shall be found

that there was error in the rulings of the court during

a trial, a verdict in favor of the defendant shall not

be set aside.”

The Court today—relying on the generic reference to

“statutes” and “all criminal cases” in the text of 18

V. S. C. 8 3731 and the absence of an express exclusion

of statutes applicable only within the District of Co-

lumbia—concludes that 18 U. S. C. § 3731 rather than 23

D. C. Code 105 provides the proper appellate route for

this case. I must disagree.

I

The historical development of the Government’s right

to appeal in criminal cases both in the District of Co-

lumbia and throughout the Nation is surveyed in Carroll

v. United States, 354 U. S. 394 (1957). Section 105 of

the D. C. Code was passed in 1901 as § 935 of the Code

of 1901. 31 Stat. 1341. Prior to the Criminal Appeals

Act of 1907, the Government had no right of appeal in

criminal cases outside of the District of Columbia. To

remedy this situation, a bill was introduced in the House

of Representatives. That bill practically tracked the

language of the D. C. statute, and made no provision for

direct appeal to this Court. 40 Cong. Rec. 5408. The

accompanying House Report described the bill as follows:

“The accompanying bill will extend [§ 935] of the code

of the District of Columbia to all districts in the United

States.” H. R. Rep. No. 2119, 59th Cong., Ist Sess.,

at 2 (1906). That bill passed the House, but the Senate

Committee on the Judiciary rejected the House approach

of simply extending the provisions of the D. C. appeals

statute to the rest of the Nation; the Senate Committee

instead substituted a more narrowly drawn measure

4 UNITED 8TATES v. VUITCH

which enumerated specific substantive categories of crim-

inal cases to be appealable by the Government and allo-

cated jurisdiction over these appeals between the Supreme

Court and the then Circuit Courts of Appeals according

to the allocation of appellate jurisdiction for civil cases

established in the Circuit Court of Appeals Act of 1891.

S. Rep. No. 3922, 59th Cong., Ist Sess. (1906). See Car-

roll v. United States, supra, at 402 n. 11. Even that bill

as narrowed could not pass the Senate; it provoked ex-

tended debate in which the opponents of the measure

focused on the potential for abuse of individual rights

arising from repeated court proceedings, delays in appeals,

and restraints on personal freedom while the Government

prosecuted its appeal. See generally United States v.

Sisson, 399 U. S. 267 (1970). The upshot of these de-

bates was that Senator Nelson, the bill’s floor manager in

the Senate, agreed to accept a variety of amendments

which further narrowed the categories of cases appeal-

able by the Government and made special provision for

the defendant’s release on his own recognizance. See 41

Cong. Rec. 2818-2825."

It is at this point that Senator Clarke of Arkansas of-

fered an amendment limiting the Government’s right to

appeal decisions dismissing indictments or arresting

judgments for insufficiency of the indictment to instances

where the decision was based upon “the validity or con-

struction of the statute.” The purpose of that amend-

ment was described by Senator Clarke as follows:

“Mr. President, the object of the amendment is to

limit the right of appeal upon the part of the Gen-

eral Government to the validity or constitutionality

of the statute in which the prosecution is proceed-

ing. It has been enlarged by the addition of another

2 The bill had been amended earlier to require the Government to

take an appeal within 30 days. 41 Cong. Rec. 2193-2194.

UNITED STATES v. VUITCH 5

clause, which gives the right of appeal where the

construction by the trial court is such as to decide

that there is no offense committed, notwithstanding

the validity of the statute, and in other respects the

ing may remain intact. I think that is a

broad enough right to concede to the General Gov-

ernment in the prosecution of persons in the court.

“In view of the defects that recent years have

disclosed, I do not believe it to be sound policy to

go beyond the necessities as they have developed

defects in our procedure. A case recently occurring

has drawn attention to the fact that if a circuit judge

or a district judge holding the circuit should deter-

mine that a statute of Congress was invalid, the

United States is without means of having that matter

submitted to a tribunal that under the Constitution

has power to settle that question. I do not believe

the remedy ought to be any wider than the mischief

that has been disclosed. I do not believe that any

additional advantages ought to be given to the

General Government in the prosecution of persons

arraigned in court, but I do believe the paragraph

ought to be perfected in that behalf, so as to provide

that there shall be an appeal to the court having

authority to give uniformity to the practice which

shall prevail in all the courts of the United States,

and that they shall be ready to say, and say promptly,

what the statute means and whether or not it is

a valid statute.

“So I think this amendment gives expression to

the proposition that the remedy we provide here now

should be no wider than the defect that has been

disclosed in the preceding criminal procedure; and

that is that whenever the validity of a statute has

0

UNITED STATES v. VUITCH

been adversely decided by a trial court, wherever its

unconstitutionality has been pronounced by a trial

court, the Government ought to have the right to

promptly submit that to the tribunal having au-

thority to dispose of such questions in order that

there may be a uniform enforcement of the law

throughout the entire limits of the United States.

“This is the purpose, I have, Mr. President, and

having discussed it with the distinguished Senator

from Wisconsin . . . and the distinguished Senator

from Minnesota [Mr. Nelson], we agreed that that

would probably meet the defect.” 41 Cong. Ree.

2819-2820. See generally 41 Cong. Rec. 2819-2822.

The bill as thus amended passed the Senate; the House

disagreed to the Senate amendment, but yielded in con-

ference. The bill in conference was amended to provide

for direct appeals to the Supreme Court. See H. R.

Conf. Rep. No. 8113, 59th Cong., 2d Sess. (1970). No

explanation was given in the conference report for the

exclusive direct appeal route.

I draw from these legislative materials the following

relevant propositons: (1) The Congress was definitely

advertent to the existence of a governmental appeal right

in criminal cases within the District; (2) the Congress

explicitly rejected the simple approach of extending the

D. C. provision to the Nation; (3) the particular pro-

vision of the Act relied on by the Government as support-

ing its direct appeal in this case was amended with a view

to limiting its reach to a relatively precise defect; i. e.,

the debilitating effect on the enforcement of criminal laws

arising from conflicting judicial intepretations; and

(4) the substitution of an exclusive direct appeal to this

Court, while not expressly explained, is perfectly com-

patible with the goal of promptly achieving uniformity

in construction of statutes applicable nationwide, while

at the same time being wholly unnecessary to the resolu-

— tt

UNITED STATES v. VUITCH 7

tion of conflicting district court constructions of local

D. C. statutes, given the existence of a right of appeal to

the Court of Appeals for the District of Columbia.

II

The question of overlap between the appellate routes

available to the Government in criminal cases under the

D. C. Code and 18 U. S. C. § 3731 was first dealt with by

this Court in United States v. Burroughs, 289 U. S. 159

(1933). In Burroughs the defendants were indicted in

the then Supreme Court of the District of Columbia for

violation of the Federal Corrupt Practices Act, a statute

of nationwide applicability. They successfully demurred

on two grounds: one involving the construction of the

statute, and the other involving the sufficiency of the

indictment as a pleading. The Government took an ap-

peal to the Court of Appeals for the District of Columbia

under the D. C. appeals statute. The appellate court

certified to this Court the question whether it had juris-

diction over an appeal where a §3731-type challenge

was joined with a challenge to the sufficiency of the in-

dictment as a pleading. The Court disposed of the

question by holding that the Criminal Appeals Act is

inapplicable to any criminal case appealable under the

provision of the D. C. Code:

“The Criminal Appeals Act, in naming the courts

from which appeals may be taken to this court,

employs the phrase ‘district courts ;’ not ‘courts of

the United States,’ or ‘courts exercising the same

jurisdiction as district courts.’ We need not, how-

ever, determine whether the statute should be con-

strued to embrace criminal cases tried in the Su-

preme Court of the District if § 935 of the District

Code were not in effect. That section deals com-

prehensively with appeals in criminal cases from all

UNITED STATES v. VUITCH

of the courts of first instance of the District and

confers on the Court of Appeals jurisdiction of ap-

peals by the Government seeking review of the

judgments of those courts. The Criminal Appeals

Act, on the other hand, affects only certain specified

classes of decisions in district courts, contains no

repealing clause, and no reference to the courts of

the District of Columbia or the territorial courts,

upon many of which jurisdiction is conferred by

language quite similar to that of the Code of Law

of the District. We cannot construe it as impliedly’

repealing the complete appellate system created for

the District of Columbia by § 935 of the Code, in

the absence of expression on the part of Congress

indicating that purpose. Implied repeals are not

favored; and if effect can reasonably be given to

both statutes, the presumption is that the earlier is

intended to remain in force... .” 289 U. S., at

163-164.

The holding in Burroughs established a complete sepa-

ration of the two statutory schemes for Government ap-

peals in criminal cases; the essence of the Court’s ration-

ale was a presumption against implied repeals.

In 1942, Congress amended the Criminal Appeals Act

to provide for Government appeals to the Courts of

Appeals from all decisions dismissing indictments or

arresting judgments of convictions except where a right

of direct appeal to this Court exists. 56 Stat. 271. The

The Court’s opinion characterizes Burroughs as having “held

only that the term ‘district court’ in the Criminal Appeals Act did

not include the then-existing Supreme Court of the District of

Columbia.” Ante, at [3]. As I read the italicized portion of the

above-quuted passage, that is the precise question that the Bur-

roughs Court concluded it did not have to decide, in light of its

holding that the Criminal Appeals Act could not, by implication,

effect the repeal of § 935 of the District Code.

UNITED STATES v. VUITCH 9

new amendment expressly included the United States

Court of Appeals for the District of Columbia as one of

the intermediate appellate tribunals to which the Govern-

ment could appeal; in addition, the Act added a new

provision to the Judicial Code establishing appellate ju-

risdiction in the then circuit courts of appeal “in criminal

cases on appeals taken by the United States in cases

where such appeals are permitted by law.” 56 Stat. 272.

The latter provision also expressly incorporated the

United States Court of Appeals for the District of

Columbia.’ Ibid.

The legislative history of the 1942 amendment offers

no explication of Congressional intent in including the

D. C. courts within the Act.“ It is certain that this

amendment generates some form of overlap between the

two statutory schemes for Governmental appeals in crim-

inal cases. In Carroll v. United States, 354 U. S. 394,

411 (1957), the Court recognized the new situation cre-

ated by the 1942 amendment:

It may be concluded, then, that even today crim-

inal appeals by the Government in the District of

Columbia are not limited to the categories set forth

in 18 U. S. C. § 3731, although as to cases of the

type covered by that special jurisdictional statute,

its explicit directions will prevail over the general

terms of [the D. C. statute] ... .”

These explicit references were subsequently omitted by amend-

ment in 1949, 63 Stat. 97, which altered the language of the statute

to conform to the changed nomenclature of the federal courts.

5 This last provision was an amendment to 28 U. S. C. § 225 (1940

ed.); see 56 Stat. 272 and Carroll v. United States, supra, at n. 5.

* The focus was on the decision to accord the Government a right

of appeal to the courts of appeal where no direct appeal to this

Court lay. See H. R. No. 45, 77th Cong., let Sess. (1941); S. Rep.

No. 868, 77th Cong., Ist Sess. (1941).

10 UNITED STATES v. VUITCH

That, however, leaves open the question which cases

come within the categories set forth in 18 U. S. C. § 3731.

III

After this Court's holding in Burroughs, it was clear

that if Congress wished to effectuate any displacement

of the pre- 1907 route for Government appeals of crim-

inal cases within the Distriet of Columbia, some express

manifestation of its intent was required. The 1942

amendment followed the Burroughs decision. Since

Congress then acted to create some overlap between the

two statutes without further limiting the categories of

directly appealable criminal cases, it may be argued that

we should presume Congress intended, as of 1942, to em-

brace within the very special appeals procedures of 18

U. S. C. § 3731 criminal cases based upon statutes appli-

cable only within the District.

But that presumption from a completely silent legis-

lative record flies in the face of the principle that statutes

creating a right of direct appeal to this Court should be

narrowly construed. Cf. Swift & Co. v. Wickham, 382

U. S. 111, 128-129 (1965); Florida Lime Growers v.

Jacobsen, 362 U. S. 73, 92-93 (Frankfurter, J., dissent-

ing). And, in light of the legislative history of the

1907 Act and this Court’s explicit holding in Burroughs

that the 1907 Act had no impact on cases appealable

under the D. C. provision, it is especially inappropriate

to rely on the absence of any further limiting language in

the 1942 amendment as a justification for reading the

term “statute” as encompassing criminal prosecutions in

the District based on local as well as nationwide statutes.

The legislative history of the 1907 Act suggests a per-

fectly plausible reason for interpreting the language

“based upon the invalidity or construction of the statute”

as excluding D. C. statutes: that language was put in

the Act by Senator Clarke with the express intention of

UNITED STATES v. VUITCH 11

limiting the Act’s goal to remedying the precise defect of

inconsistent enforcement of criminal statutes arising from

the lack of a Government appeal. The Court of Appeals

for the District of Columbia constitutes a perfectly ade-

quate appellate tribunal for resolving conflicting inter-

pretations given local statutes by judges within the

District of Columbia.’ Where, however, the Govern-

ment brings a prosecution in the District of Columbia

based on a statute of nationwide applicability, the Court

of Appeals for the District of Columbia cannot achieve

uniformity in the enforcement of the statute.

As an original proposition, then, a construction of the

relevant provisions of the 1907 Act as excluding criminal

cases in the District brought under local statutes but

including cases brought under nationwide statutes would

have been consistent both with the express purpose of

Senator Clarke’s amendment and the canon of strict con-

struction as applied to direct appeals statutes.’ But the

The Government suggests a construction of the Criminal Appeals

Act excluding D. C. statutes would require the Court to exclude other

criminal statutes of only limited territorial application, e. g. 18

U. S. C. 88 1111-1112; (punishing homicide [ within the special

maritime and territorial jurisdiction of the United States”); 18

U. S. C. §§ 1151-1165 regulating offenses within Indian territory).

See Gov. Brief, at 15-16. But I would not construe 18 U. S. C.

§ 3731 as excluding D. C. criminal cases punishable under D. C.

statutes because they are of limited territorial application; rather,

the point is that given the existence of a prior right of Govern-

ment appeal, the risks of disuniformity which Senator Clarke

described the statute as intended to cure do not exist.

® The Government suggests, in its Supplemental Memorandum for

the United States, at 6-7, that a construction of the 1907 Act ex-

cluding statutes applicable only within the District of Columbia from

the scope of the first two provisions leads to the “anomalous con-

sequence” that 18 U. S. C. § 3731 would still allow a direct appeal

in a D. C. case where the motion-in-bar provision is concerned.

E. g., United States v. Sweet, 399 U. S. 517 (1970). The alleged

“anomaly” would seem to argue for the conclusion that D. C. cases

12 UNITED STATES v. VUITCH

Court in Burroughs took the position that Congress could

not displace the pre-existing appellate route to any extent

without indicating an express intent to do so; Burroughs,

significantly, involved a prosecution under a statute of

nationwide applicability. Subsequently, Congress did

expressly indicate an intent to displace the alternative

appellate route available within the District. The extent

of that displacement, I think, should now be measured by

the express goal of the relevant provision of the 1907

Act, as limited by Senator Clarke: avoidance of incon-

sistent enforcement of criminal laws. That theory of

legislative purpose—combined with the Burroughs hold-

ing that Congress should be required to affirmatively

indicate an intent to displace the prior appellate route—

yields an interpretation of the 1907 Act as amended in

1942 which is consistent with the canon of strict con-

struction generally applied to direct appeals statutes’

involving the motion-in-bar provision are not directly appealable

here, either. Certainly, the Court’s disposition in Sweet would not

foreclose that result.

In any event, the purpose Senator Clarke had in mind in offering

his limiting amendment with regard to the first two provisions of

18 U. S. C. §3731 was rather clearly expressed; that he failed to

address himself to the motion-in-bar provision—which, after all,

received very little attention in the prolonged debates on the floor

of the Senate—hardly justifies an expansive reading of the other pro-

visions of the Act.

»The Government relies principally on Shapiro v. Thompson, 394

U. S. 618, 625 n. 4, as supporting its construction of the generic

reference to “statutes” in 18 U. S. C. §3731 to include statutes

applicable only within the District of Columbia. Shapiro dealt with

28 U. S. C. §2282, which requires a three-iudge court to hear

requests for injunctions against the enforcement of “any Act of

Congress” when the ground for the requested relief is the alleged

unconstitutionality of the Act. Decisions of such three-judge courts

are, under the circumstances set forth in 28 U. S. C. § 1253, di-

rectly appealable to this Court. In Shapiro, the Court noted at

least one prior instance where the Court had taken jurisdiction over

UNITED STATES v. VUITCH

IV

I have little doubt that, had the Criminal Appeals Act

not been recently amended to dispense with direct ap-

peals to this Court, see n. 1 supra, the interpretation of

the Act I have suggested would be adopted by the Court.

This Court has never taken jurisdiction over a direct

appeal from a dismissal of a prosecution brought in the

a case involving a statute applicable only within the District and

then stated: “Section 2282 requires a three-judge court to hear a

challenge to the constitutionality of ‘any Act of Congress.’ We see

no reason to make an exception for Acts of Congress pertaining to

the District of Columbia.” 394 U. S., at 625 n. 4 (emphasis in

iginal).

The Shapiro approach is obviously inappropriate for the present

problem. First, despite the Government’s assertion to the contrary,

see Gov. Brief, at 15, the phrase “any Act of Congress” is argu-

ably broader than a generic reference to “statutes.” Indeed, the

Shapiro Court explicitly chose to emphasize the presence of the word

“any” in the relevant portion of that statute. Second, while an exer-

cise of jurisdiction in a case where jurisdiction is not challenged is

of little precedential value, the Court in Shapiro still chose to take

note of such a prior case; in the present context, this Court has never

taken jurisdiction of a § 3731 appeal involving a statute applicable

only within the District.

Third, and most importantly, Congress at the time of the three-

judge court Acts altered the principles of both original and appellate

jurisdiction for the substantive categories of litigation involved; the

new procedural routes reflect crucial considerations of comity be-

tween sovereigns and among the branches of the Federal Govern-

ment. See generally Currie, The Three-Judge Court in Constitu-

tional Litigation, 32 U. Chi. L. Rev. 1 (1964). There is no legislative

history supporting the notion that the new procedures were narrowed

to alleviate particular defects of inconsistent constitutional interpre-

tation due to the absence of any appellate route for the substantive

categories of cases to be included within the Act.

In these circumstances, it is fair to conclude that the principle of

strict construction applicable to such statutes must yield to the

“inert language” of the statute. Cf. Florida Lime Growers v. Jacob-

sen, 362 U. S. 73, 92 (1960) (Frankfurter, J., dissenting).

14 UNITED STATES v. VUITCH

District of Columbia for violation of a statute applicable

within the District. It is worth noting that, given the

Court’s adherence to the principles of Carroll v. United

States, supra, the rather absurd waste of our judicial

resources on cases such as United States v. Waters, 175

F. 2d 340, appeal dismissed on motion of the United

States, 335 U. S. 869 (1948), and United States v. Sweet,

399 U. S. 517 (1970), see n. 7 supra, could not even be

avoided by the exercise of governmental discretion in

choosing appellate routes. In light of Carroll, I cannot

believe that a pefectly acceptable reading of congressional

purpose underpinning the definiton of categories of cases

directly appealable under 18 U. S. C. § 3731 which ex-

cludes statutes applicable only within the District of

Columbia would have been turned down by the Court.

Of course, the recent elimination of the direct appeal

route removes a great deal of the incentive to continue

the stringent standards of construction with respect to

this statute that have traditionally prevailed in this

Court. Indeed, at this stage of the game, the canon

of strict construction produces the ironic result of com-

pelling a relatively greater expenditure of judicial energies

in assessing our jurisdiction over the remainder of the

criminal cases pending in the district courts of the

Nation at the time of the most recent amendment than

would be involved in deciding those cases on the merits.

Nonetheless, this very Term we have indicated that we

intend to adhere to the rules of construction evolved by

this Court during the long and tortuous history of this

statute. United States v. Weller, No. 77, October Term

1970 (decided February 24, 1971).

The only response we are offered to the reading of

congressional purpose I have suggested is that the inter-

ests of avoiding inconsistent enforcement of criminal laws

argues for exercising jurisdiction over this case because

similar statutes in other jurisdictions are under attack

_

UNITED STATES v. VUITCH 15

on vagueness grounds. See the Court’s opinion, at [3].

Surely those of my Brethren who subscribe to the views

on jurisdiction expressed in the opinion of the Court

must recognize that we cannot limit the category of

appealable cases under this provision of the Act to prose-

cutions brought under D. C. statutes which are (a) du-

plicated in other jurisdictions, and (b) under attack on

similar federal question grounds in other jurisdictions.

The proffered response is, therefore, not truly a reason

for concluding we have jurisdiction over the relevant

category of cases; rather, it is a reason for exercising our

power in this one case to settle Dr. Vuitch’s vagueness

claim in spite of the absence of the jurisdictional pre-

requisites which legitimize the exercise of that judicial

power.

V

Having concluded that the Government cannot directly

appeal the dismissal of the indictment to this Court

under the provisions of 18 U. S. C. § 3731, it also follows

that we cannot utilize the remand provisions of that

statute to reroute the appeal to the Court of Appeals

for the District of Columbia. However, we do have

jurisdiction to determine our jurisdiction, and, in the

analogous three-judge court situation where an alterna-

tive appellate route exists but the statute according this

Court direct jurisdiction over the certain appeals includes

no remand procedure, this Court has vacated the judg-

ment of the court of original jurisdiction and remanded

the case to that court for the entry of a fresh decree

from which timely appeal may be taken to the proper

appellate tribunal. Rockefeller v. Catholic Medical Cen-

ter of Brooklyn & Queens, 397 U. S. 820 (1970). The

instant case, of course, is a criminal prosecution, and

there is a consideration not present in the three-judge

court situation: i. e., the additonal anxiety caused the

16 UNITED STATES v. VUITCH

defendant by virtue of the Government’s erroneous.

choice of appellate routes. But, while 18 U. S. C. § 3731

cannot empower us to transfer the case, that statute is

still relevant as an expression of congressional policy to

save the Government’s appeal where an erroneous choice

of appellate routes is made, even at the expense of addi-

tional anxiety to the defendant. Accordingly, I think

the proper disposition of this case would be to vacate the

judgment of the District Court and remand the case for

the entry of a fresh judgment from which the Govern-

ment could take a timely appeal to the Court of Appeals

for the District of Columbia pursuant to 23 D. C. Code

§ 105.

VI

Notwithstanding the views on jurisdiction expressed

above, and speaking only for myself, and not for those

of my Brethren who agree with my discussion of the

jurisdictional issue in this case, I have concluded, sub-

stantially for the reasons set forth in Mr. Justice

BLACKMUN’s separate opinion, that I should also reach

the merits. Accordingly, I concur in Part II of the

Court’s opinion and the judgment of the Court.

SUPREME COURT OF THE UNITED STATES

No. 84.—Ocroser Term, 1970

United States, Appellant,] On Appeal From the United

v. States District Court for

Milan Vuitch. the District of Columbia.

{April 21, 1971]

Mr. Justice Stewakt, dissenting in part.

I agree that we have jurisdiction of this appeal for the

reasons stated in Part I of the Court’s opinion.

As to the merits of this controversy, I share at least

some of the constitutional doubts about the abortion

statute expressed by the District Court. But, as this

Court today correctly points out, “statutes should be

construed whenever possible so as to uphold their con-

stitutionality.” The statute before us can be so con-

strued, I think, simply by extending the reasoning of

the Court’s opinion to its logical conclusion.

The statute legalizes any abortion performed “under

the direction of a competent licensed practitioner of

medicine” if “necessary for the preservation of the

mother’s life or health.” Under the statute, therefore,

the legal practice of medicine in che District of Columbia

includes the performing of abortions. For the practice

of medicine consists of doing those things which, in the

judgment of a physician, are necessary to preserve a

patient’s life or health. As the Court says, “whether a

particular operation is necessary for a patient’s physical

or mental health is a judgment that physicians are ob-

viously called upon to make routinely whenever surgery

is considered.”

It follows, I think, that when a physician has exercised

his judgment in favor of performing an abortion, he has,

by hypothesis, not violated the statute. To put it an-

.

2 UNITED STATES v. VUITCH

other way, I think the question of whether the perform-

ance of an abortion is “necessary for the mother’s life

or health” is entrusted under the statute exclusively to

those licensed to practice medicine, without the over-

hanging risk of incurring criminal liability at the hands

of a second-guessing lay jury. I would hold, therefore,

that “a competent licensed practitioner of medicine” is

wholly immune from being charged with the commis-

sion of a criminal offense under this law.

It is true that the statute can be construed in other

ways, as Mr. Justice Dovaias has made clear. But I

would give it the reading I have indicated “in the candid

service of avoiding a serious constitutional doubt.”

United States v. Rumely, 345 U. S. 41, 47.

SUPREME COURT OF THE UNITED STATES

No. 84.—Ocroser Term, 1970

United States, Appellant,] On Appeal From the United

v. States District Court for

Milan Vuitch. the District of Columbia.

[April 21, 1971]

Mr. Justice BLACKMUN.

Although I join Mr. Justice HAxLAx in his conclusion

that this case is not properly here by direct appeal under

18 U. S. C. § 3731, a majority, and thus the Court, holds

otherwise. ‘The case is therefore here and requires

decision.

The five Justices constituting the majority, however,

are divided on the merits. One feels that 22 D. C. Code

§201 lacks the requirements of procedural due process

and would affirm the dismissal of the indictment. One

would hold that a licensed physician is immune from

charge under the statute. Three would hold that, prop-

erly construed, the statute is not unconstitutionally vague

and that the dismissal of the indictment on that ground

was error. ;

Because of the inability of the jurisdictional-issue ma-

jority to agree upon the disposition of the case, I feel

obligated not to remain silent as to the merits. See

Screws v. United States, 325 U. S. 91, 134 (1945) (ad-

dendum by Mr. Justice Rutledge); United States v.

Jorn, 400 U. S. 470, 487-488 (1971) (statement of BLAck

and BRENNAN, JJ. ); Mills v. Alabama, 384 U. S. 214,

222-223 (1966) (separate opinion of Haruan, J.); Kesler

v. Department of Public Safety, 369 U. S. 153, 174, 179

(concurring opinion of Stewart, J., and dissenting opin-

ion of Warren, C. J.). Assuming, as I must in the light

of the Court’s decision, that the Court does have juris-

diction of the appeal, I join Part II of Mr. Justice

Buacx’s opinion and the judgment of the Court.

Z