# United States v. Vuitch/Dissent Douglas

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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 DOUGLAS, 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 physician to perform an abortion 'unless the same were done as necessary for the preservation of the mother's life or health.' D.C.Code Ann. § 22-201 (1967).
I agree with the Court that a physician-within 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 'preservation' 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 physician. If we could read the Act as making that determination 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 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, as 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 peremptory challenges. But vagueness of criminal statutes introduces another element that is uncontrollable. 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 nonetheless make felons out of them?
The Court said in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, that a 'statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'
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 certain 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 threatened 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, D.C., 314 F.Supp. 1217, 1223.
The Roe case was followed by a three-judge court in Doe v. Scott, D.C., 321 F.Supp. 1385, which struck down an Illinois statute which sanctioned an abortion 'necessary for the preservation of the woman's life.' And see People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.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 act in a similar way under this abortion statute?
May he perform abortions on unmarried women 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 standard of criminality, said in Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232, 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 incur a fine or a short imprisonment, as here; he may incur the penalty of death.'
He wrote in a context of economic regulations which are restrained by few, if any, constitutional guarantees.
Where, however, constitutional guarantees are implicated, the standards of certainty are more exacting.
Winters v. New York, 333 U.S. 507, 514, 519, 68 S.Ct. 665, 669, 672, 92 L.Ed. 840, 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 an accordion-like way as to infringe on religious rights protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 782, 96 L.Ed. 1098.
The requirement of a 'narrowly drawn' statute when the regulation touches a protected constitutional right (Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213; Thornhill v. Alabama, 310 U.S. 88, 100, 60 S.Ct. 736, 743, 84 L.Ed. 1093) is only another facet of the void-for-vagueness problem.
What the Court held in Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, 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 appellant's trial, does not furnish a sufficiently ascertainable 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, as thus construed, licenses the jury to create its own standard in each case.' Id., at 261, 262, 263, 57 S.Ct., at 741 (Italics added.)
If these requirements of certainty are not imposed then the triers of fact have 'a power to invade imperceptibly (and thus unreviewably) a realm of constitutionally protected personal liberties.' Note, 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 Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, we held to involve rights associated with several express constitutional rights and which are summed up in 'the right of privacy.' They include the right to procreate (Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655), the right to marry across the color line (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010), the intimate familial relations between children and parents (Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Levy v. Louisiana, 391 U.S. 68, 71-72, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436). There is a compelling personal interest in marital privacy and in the limitation 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 the fetus' destruction. This is not to say that government is powerless to legislate on abortions. Yet the laws enacted must not trench on constitutional guarantees which they can easily do unless colsely confined.
Abortion statutes deal with conduct which is heavily weighted with religious teachings and ethical concepts. Mr. Justice Jackson once spoke of the 'treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case.' Jordan v. De George, 341 U.S. 223, 242, 71 S.Ct. 703, 713, 95 L.Ed. 886 (dissenting opinion). The difficulty and danger are compounded when religion adds another layer of prejudice. The end result is that juries condemn what they personally disapprove.
The subject of abortions-like cases involving obscenity-is one of the most inflammatory ones to reach the Court. People instantly take sides and the public, from whom juries are drawn, makes up its mind one way of the other before the case is even argued. The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has. That means that jurors may give it such meaning as they choose, while physicians are left to operate outside the law. Unless the statutory code of conduct is stable and in very narrow bounds, juries have a wide range and physicians have no reliable guideposts. The words 'necessary for the preservation of the 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 these indictments and leave to the experts the drafting of abortion laws that protect good-faith medical practitioners from the treacheries of the present law.

## Notes

* ↑ '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 the freedom of those not bound by identical religious conviction. Although the moral issue hangs like a threatening cloud over any open discussion of abortion, the moral issues are not all one-sided. The psychoanalyst Erik Erikson stated the other side well when he suggested that 'The most deadly of all possible sins is the mutilation of a child's spirit.' There can be nothing more destructive to a child's spirit than being unwanted, and there are few things more disruptive to a woman's spirit than being forced without love or need into motherhood.' The Right to Abortion: A Psychiatric View, 218-219 (Group for the Advancement of Psychiatry, Vol. 7, Pub. No. 75, 1969).
* ↑ Mr. Justice Clark recently wrote: 'Throughout history religious belief has wielded a vital influence on society's attitude regarding abortion. The religious issues involved are perhaps the most frequently debated aspects of abortion. At the center of the ecclesiastical debate is the concept of 'ensoulment' or 'personhood,' i.e., the 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.e., 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: A Constitutional Appraisal, 2 Loyola U.L.Rev (L.A.) 1, 4 (1969).
* ↑ I have expressed my views on the vagueness of criminal laws governing obscenity in Dyson v. Stein, 401 U.S. 200, 204, 91 S.Ct. 769, 772, 27 L.Ed.2d 781 (dissenting opinion). And see the dissent of Mr. Justice Black in Ginzburg v. United States, 383 U.S. 463, 476, 86 S.Ct. 942, 950, 16 L.Ed.2d 31.
* ↑ Clark, supra, n. 2, at 10-11.
Cf. New York's new abortion law effective July 1, 1970, N.Y.Penal Law § 125.05, subd. 3 (Supp.1970-1971):
'An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable 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, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.' And see Hall, The Truth About Abortion in New York, 13 Columbia Forum, Winter 1970, p. 18; Schwartz, The Abortion Laws, 67 Ohio St.Med.J. 33 (1971).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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