# United States v. Vuitch/Dissent Stewart

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United States Supreme Court
402 U.S. 62
United States v. Vuitch
Argued: Jan. 12, 1971. --- Decided: April 21, 1971
Mr. Justice STEWART, 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 constitutionality.' The statute before us can be so construed, 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 the 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 obviously 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 another way, I think the question of whether the performance of an abortion is 'necessary for the * * * mother's life or health' is entrusted under the statute exclusively to those licensed to practice medicine, without the overhanging risk of incurring criminal liability at the hands of a second-guessing lay jury. I would hold, therefore, that 'a competent licensed practitioner of medicine' is wholly immune from being charged with the commission of a criminal offense under this law.
It is true that the statute can be construed in other ways, as Mr. Justice DOUGLAS 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, 73 S.Ct. 543, 546, 97 L.Ed. 770.
Mr. Justice BLACKMUN.
Although I join Mr. Justice HARLAN 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 D.C.Code Ann. § 22-201 (1967) lacks the requirements of procedural due process and would affirm the dismissal of the indictments. One would hold that a licensed physician is immune from charge under the statute. Three would hold that, properly construed the statute is not unconstitutionally vague and that the dismissal of the indictments on that ground was error.
Because of the inability of the jurisdictional-issue majority 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, 65 S.Ct. 1031, 1051, 89 L.Ed. 1495 (1945) (addendum by Mr. Justice Rutledge); United States v. Jorn, 400 U.S. 470, 487 488, 91 S.Ct. 547, 558-559, 27 L.Ed.2d 543 (1971) (statement of Black and Brennan, JJ.); Mills v. Alabama, 384 U.S. 214, 222-223, 86 S.Ct. 1434, 1438-1439, 16 L.Ed.2d 484 (1966) (separate opinion of Harlan, J.); Kesler v. Department of Public Safety, 369 U.S. 153, 174, 179, 82 S.Ct. 807, 819, 822, 7 L.Ed.2d 641 (1962) (Stewart, J., concurring in part, and Warren, C.J., dissenting). Assuming, as I must in the light of the Court's decision, that the Court does have jurisdiction of the appeal, I join Part II of Mr. Justice BLACK'S opinion and the judgment of the Court.

## Notes

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