Simopoulos v. Com.

Decision Date24 April 1981
Docket NumberNo. 801107,801107
Citation221 Va. 1059,277 S.E.2d 194
PartiesChris SIMOPOULOS, M.D. v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Roy Lucas, Washington, D. C. (John H. Obrion, Richmond, Va., Lucas & Miller, P.C., Washington, D. C., Browder, Russell, Little, Morris & Butcher, Richmond, on brief), for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON, JJ.

POFF, Justice.

Chris Simopoulos, a medical doctor licensed to practice obstetrics and gynecology, appeals from a judgment convicting him of a violation of the abortion statutes. The trial court heard the evidence without a jury and sentenced him to two years' imprisonment suspended during good behavior upon condition he serve 30 days in jail.

P.M., a 17 year-old female, made an appointment to see the defendant at his clinic on November 8, 1979. She told him that she was pregnant, that she was not married, and that she had decided to have an abortion. The defendant inquired whether she had discussed the matter with her parents, and she replied that she had been afraid to do so. The defendant examined her, informed her that she was five and one-half months pregnant, and agreed to perform an abortion by means of an injection of a "saline solution". 1 P.M. told him that she intended to deliver the fetus in a motel, and the defendant assured her that "it was okay".

On the morning of November 10, P. M. returned with her boyfriend to the clinic and, using money she had acquired through her VISA credit card, she paid the agreed fee of $475. The defendant administered a local anaesthetic, injected a saline solution into her amniotic cavity, and gave her a "Post-Injection Information" sheet and a prescription for percodan, an analgesic. The sheet advised her that she had undergone "a surgical procedure" and warned her of "a wide range of normal reactions", including contractions, backache or tenderness at the bottom of the abdomen, nausea, thirst, dizziness, expulsion of amniotic fluid, rupture of "the bag of waters", and bleeding. The sheet directed her to abstain from alcoholic beverages and sexual activity, to call the doctor if "heavy" bleeding began, and to come to the hospital when labor contractions became frequent or when the bag of waters broke.

That afternoon, P. M. and her boyfriend filled the prescription and rented a room in a motel near the clinic. P. M.'s boyfriend stayed with her until 3:00 a. m. the next morning, returned at noon, and left again at 10:00 p. m. that night. Shortly after midnight, P. M. experienced the onset of labor. About 11:00 a. m. that morning, she expelled the fetus, placed it and the afterbirth in a bathroom trashcan, and left for home. P. M. testified that she had eaten "some peanut butter and jelly sandwiches" and smoked a few cigarettes while awaiting her labor. She denied that she had ingested any drugs or medication except the percodan. She admitted that she never intended to abort in the hospital. Asked if the defendant had instructed her to abort in a motel, she said that "(h)e told me that it was possible, that I didn't have to go to a hospital" and "(h)e made it perfectly clear what he meant." Responding to another question, she denied that the defendant had promised to meet her at the hospital after the contractions started.

In the course of our opinion, we will detail other facts relevant to the multiple issues framed on appeal. These include the validity of the indictment, the sufficiency of the evidence to prove criminal intent and causation, the denial of discovery motions, and the exclusion of certain testimony. Aside from the constitutional questions underlying these issues, the defendant questions the constitutionality of the hospital requirement of the statutes under which he was indicted and convicted.

I. CONSTRUCTION OF THE STATUTES

The defendant urges us to construe Article 9, Chapter 4, Title 18.2 of the Code as a whole. Doing so, we paraphrase the eight statutes set out in the margin. 2

1. A person who destroys a woman's unborn child, or causes her to abort or miscarry, by the use of any substance or by any other means with intent to achieve such a result is guilty of a Class 4 felony, unless the procedures employed and the result achieved are made lawful by other provisions of Article 9. § 18.2-71.

2. The process criminalized by § 18.2-71 is lawful when performed in the first trimester of pregnancy. § 18.2-72.

3. Such process is lawful during the second trimester when performed by a licensed physician in a licensed hospital. § 18.2-73.

4. In the third trimester, the abortion process is lawful if: (a) it is performed by a licensed physician in a licensed hospital; (b) three physicians certify of record that a continuation of the pregnancy is likely to cause the woman to die or suffer substantial and permanent impairment of mental or physical health; and (c) fetal life support measures are available and utilized when there is clearly visible evidence that the fetus is viable. § 18.2-74.

5. The proscribed process is lawful at any time during pregnancy if, in the opinion of the attending physician, such process is necessary to save the woman's life. § 18.2-74.1.

6. Hospitals and physicians are not required to perform any process authorized by Article 9, and persons who register conscientious objections may refuse to participate in the procedures and are protected against damage suits and other recriminatory actions growing out of such refusal. § 18.2-75.

7. No process otherwise authorized under Article 9 may be performed without the informed written consent of the woman or, when she has been adjudged incompetent, one authorized to act for her. § 18.2-76.

8. Any person who promotes or induces the performance of a process prohibited by Article 9 is guilty of a Class 3 misdemeanor. § 18.2-76.1.

II. VALIDITY OF THE INDICTMENT

Referencing § 18.2-71, the indictment charged that the defendant "did unlawfully and feloniously, during the second trimester of pregnancy and outside of a hospital licensed by the State ... use means upon a white female, aged 17, with the intent to produce abortion and thereby destroy her unborn child."

In a pre-trial motion to dismiss, the defendant alleged that the indictment "fails to state a valid offense". On appeal, he raises three challenges to the validity of the indictment.

A. Criminal Intent

First, the defendant points out that the indictment did not charge that he acted "with the specific intent that the patient abort outside the hospital", and, he says, the evidence failed to establish such intent. Construing §§ 18.2-71, -73 together, the defendant maintains that, absent such a charge, the indictment is fatally defective.

The defendant's construction rests upon his impression that the definition of "abortion" contemplated by Article 9 is "expulsion of the fetus". That is a misimpression. "(T)he crime denounced is not limited to abortion in its narrow meaning of expulsion of the fetus, but includes ... the use of any means with intent to destroy an unborn child, resulting in the destruction of such child." Coffman v. Commonwealth, 188 Va. 553, 561-62, 50 S.E.2d 431, 436 (1948). Both the means and the ensuing process, though proscribed by § 18.2-71, are made lawful by § 18.2-73 when performed in the second trimester, "provided such procedure is performed in a hospital". Dr. Peter Soyster, a practicing gynecologist, agreed at trial that the injection of a saline solution into the amniotic cavity of a pregnant woman is "a procedure to terminate her pregnancy". In our view, the statutory proviso applies to all procedures performed during the entire process, including the means employed with intent to initiate the process. The indictment expressly charged that the defendant employed such means with such intent. It was unnecessary to charge that he intended his patient to expel the fetus outside a hospital.

B. Duty to Preserve Fetal Life

Because the statute referenced by the indictment forbids destruction of the fetus, the defendant argues that the indictment unconstitutionally burdens him with a duty to preserve the life of the fetus. It is true that a statute which imposes a duty upon a physician to take affirmative action to preserve a fetus, irrespective of the stage of pregnancy and the viability of the fetus, is constitutionally impermissible. Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 83, 96 S.Ct. 2831, 2847, 49 L.Ed.2d 788 (1976). But after viability, the sovereign has a "compelling interest" sufficient to justify regulation reasonably designed to preserve the life of the fetus. "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." Roe v. Wade, 410 U.S. 113, 163-64, 93 S.Ct. 705, 731-32, 35 L.Ed.2d 147 (1973).

We do not agree that the statutory proscription against destruction of the fetus is a command to preserve it. While § 18.2-74(c) requires a physician to utilize fetal life support measures during the third trimester "if there is any clearly visible evidence of viability 3", nothing in Article 9 imposes such an affirmative duty during the pre-viable stages of pregnancy, and we find no merit in the defendant's second argument.

C. Medical Necessity Defense

In a third argument, the defendant contends that the indictment is defective because it "does not attempt to negate the exception ... of a medical necessity to treat the patient". This omission, the defendant says, shifts the burden of proving the exception to him in violation of the Supreme Court's ruling in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971). There, the accused was charged with violation of a statute in which the enacting clause...

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  • City of Akron v. Akron Center For Reproductive Health, Inc Akron Center For Reproductive Health, Inc v. City of Akron
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    ...§§ 18.2-71, -73 or -74 shall apply. This section affords the physician the benefit of an affirmative defense. See Simopoulos v. Virginia, 221 Va. 1059, 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 6. Under Section 18.2-74.2(B), a physician charged with an offen......
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