United States v. Vuitch/Dissent Douglas

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.