United States v. Vuitch/Concurrence White

Mr. Justice WHITE, 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 necessary for the preservation of the mother's life or health was a judgment that the average person could not understand 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, is the governing standard. It should also be absolutely clear that a doctor is not free to perform an abortion on request without considering whether the patient's health requires it. No one of average intelligence could believe that under this statute abortions not dictated by health considerations are legal. Thus even if the 'health' standard were unconstitutionally 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, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

Mr. Justice DOUGLAS, dissenting in part.