Simopoulos v. Virginia

Decision Date15 June 1983
Docket NumberNo. 81-185,81-185
Citation462 U.S. 506,76 L.Ed.2d 755,103 S.Ct. 2532
PartiesChris SIMOPOULOS, Appellant, v. VIRGINIA
CourtU.S. Supreme Court
Syllabus

Appellant, an obstetrician-gynecologist, was convicted after a Virginia state-court trial for violating Virginia statutory provisions that make it unlawful to perform an abortion during the second trimester of pregnancy outside of a licensed hospital. "Hospital" is defined to include outpatient hospitals, and State Department of Health regulations define "outpatient hospital" as including institutions that primarily furnish facilities for the performance of surgical procedures on outpatients. The regulations also provide that second-trimester abortions may be performed in an outpatient surgical clinic licensed as a "hospital" by the State. The evidence at appellant's trial established, inter alia, that he performed a second-trimester abortion on an unmarried minor by an injection of saline solution at his unlicensed clinic; that the minor understood appellant to agree to her plan to deliver the fetus in a motel and did not recall being advised to go to a hospital when labor began, although such advice was included in an instruction sheet provided her by appellant; and that the minor, alone in a motel, aborted her fetus 48 hours after the saline injection. The Virg nia Supreme Court affirmed appellant's conviction.

Held:

1. The Virginia abortion statute was not unconstitutionally applied to appellant on the asserted ground that the State failed to allege in the indictment and to prove lack of medical necessity for the abortion. Under the authoritative construction of the statute by the Virginia Supreme Court, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally permissible. And appellant's contention that the prosecution failed to prove that his acts in fact caused the fetus' death is meritless, in view of the undisputed facts proved at trial. P.510.

2. Virginia's requirement that second-trimester abortions be performed in licensed outpatient clinics is not an unreasonable means of furthering the State's important and legitimate interest in protecting the woman's health, which interest becomes "compelling" at approximately the end of the first trimester. In Akron v. Akron Center for Reproduc- tive Health, Inc., --- U.S. ----, 103 S.Ct. 2481, 75 L.Ed.2d ----, and Planned Parenthood Assn. of Kansas City v. Ashcroft, --- U.S. ----, 103 S.Ct. 2517, 75 L.Ed.2d ----, constitutional challenges were upheld with regard to requirements mandating that all second-trimester abortions be performed in "general, acute-care facilities." In contrast, the Virginia statutes and regulations do not require that such abortions be performed exclusively in full-service hospitals, but permit their performance at licensed outpatient clincs. Thus, the decisions in Akron and Ashcroft are not controlling here. Although a State's discretion in determining standards for the licensing of medical facilities does not permit it to adopt abortion regulations that depart from accepted medical practice, the Virginia regulations on their face are compatible with accepted medical standards governing outpatient second-trimester abortions. Pp. 510-519.

221 Va. 1059, 277 S.E.2d 194, affirmed.

Roy Lucas, Washington, D.C., for appellant.

William G. Broaddus, Chief Deputy Atty. Gen., Richmond, Va., for appellee.

Justice POWELL delivered the opinion of the Court.

We have considered today mandatory hospitalization requirements for second-trimester abortions in City of Akron v. Akron Center for Reproductive Health, Inc., --- U.S. ----, 103 S.Ct. 2481, 75 L.Ed.2d ----, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, --- U.S. ----, 103 S.Ct. 2517, 75 L.Ed.2d ----. The principal issue here is whether Virginia's mandatory hospitalization requirement is constitutional.

I

Appellant is a practicing obstetrician-gynecologist certified by the American Board of Obstetrics and Gynecology. In November, 1979, he practiced at his office in Woodbridge, Virginia, at four local hospitals, and at his clinic in Falls Church, Virginia. The Falls Church clinic has an operating room and facilities for resuscitation and emergency treatment of cardiac/respiratory arrest. Replacement and stabilization fluids are on hand. Appellant customarily performs first-trimester abortions at his clinic. During the time relevant to this case, the clinic was not licensed, nor had appellant sought any license for it.

P.M. was a 17-year old high-school student when she went to appellant's clinic on November 8, 1979. She was unmarried, and told appellant that she was approximately 22 weeks pregnant. She requested an abortion but did not want her parents to know. Examination by appellant confirmed that P.M. was five months pregnant, well into the second trimester. Appellant testified that he encouraged her to confer with her parents and discussed with her the alternative of continuing the pregnancy to term. She did return home, but never advised her parents of her decision.

Two days later, P.M. returned to the clinic with her boy friend. The abortion was performed by an injection of saline solution. P.M. told appellant that she planned to deliver the fetus in a motel, and understood him to agree to this course. Appellant gave P.M. a prescription for an analgesic and a "Post-Injection Information" sheet that stated that she had undergone "a surgical procedure" and warned of a "wide range of normal reactions." App. 199. The sheet also advised that she call the physician if "heavy" bleeding began. Although P.M. did not recall being advised to go to a hospital when labor began, this was included on the instruction sheet. Id., at 200.

P.M. went to a motel. Alone, she aborted her fetus in the motel bathroom 48 hours after the saline injection. She left the fetus, follow-up instructions, and pain medication in the wastebasket at the motel. Her boy friend took her home. Police found the fetus later that day and began an investigation.1

Appellant was indicted 2 for unlawfully performing an abortion during the second trimester of pregnancy outside of a licensed hospital and was convicted by the Circuit Court of Fairfax County sitting without a jury. The Supreme Court of Virginia unanimously affirmed the conviction. Simopoulos v. Commonwealth, 221 Va. 1059 277 S.E.2d 194 (1981). This appeal followed. We noted probable jurisdiction, 456 U.S. 988, 102 S.Ct. 3479, 73 L.Ed.2d 1364, and now affirm.

II

Appellant raises two issues that do not require extended treatment. He first contends that Va.Code § 18.2-71 was applied unconstitutionally to him, because lack of medical necessity for the abortion was not alleged in the indictment, addressed in the prosecution's case, or mentioned by the trier of fact. Appellant contends that this failure renders his conviction unconstitutional for two reasons: (i) the State failed to meet its burden of alleging necessity in the indictment, as required by United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); and (ii) the prosecution failed to meet its burden of persuasion, as required by Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

The authoritative construction of § 18.2-71 by the Supreme Court of Virginia makes it clear that, at least with respect to the defense of medical necessity, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. See 221 Va., at 1069, 277 S.E.2d, at 200. Appellant's reliance on Vuitch thus is misplaced: the District of olumbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See 402 U.S., at 70, 91 S.Ct., at 1298. Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally permissible. See Engle v. Isaac, 456 U.S. 107, 120-121, and n. 20, 102 S.Ct. 1558, 1567-1568, and n. 20 (1982); Mullaney v. Wilbur, 421 U.S. 684, 701-703, nn. 28, 30, 31, 95 S.Ct. 1881, 1890-1892, nn. 28, 30, 31, 44 L.Ed.2d 508 (1975).

Appellant also contends that the prosecution failed to prove that his acts in fact caused the death of the fetus. In view of the undisputed facts proved at trial, summarized above, this contention is meritless. See 221 Va., at 1069-1070, 277 S.E.2d, at 200-201.

III

We consistently have recognized and reaffirm today that a State has an "important and legitimate interest in the health of the mother" that becomes " 'compelling' . . . at approximately the end of the first trimester." Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973). See City of Akron, supra, --- U.S., at ----, 103 S.Ct., at 2492. This interest embraces the facilities and circumstances in which abortions are performed. See id., 410 U.S., at 150, 93 S.Ct., at 725. Appellant argues, however, that Virginia prohibits all non-hospital second-trimester abortions and that such a requirement imposes an unconstitutional burden on the right of privacy. In City of Akron and Ashcroft, we upheld such a constitutional challenge to the acute-care hospital requirements at issue there. The State of Virginia argues here that its hospitalization requirement differs significantly from the hospitalization requirements considered in City of Akron and Ashcroft and that it reasonably promotes the State's interests.

A.

In furtherance of its compelling interest in maternal health, Virginia has enacted a hospitalization requirement for abortions performed during the second trimester. As a general proposition, physicians' offices are not regulated under Virginia law.3 Virginia law does not, however, permit a physician licensed in the practice of medicine and surgery...

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