United States v. Vuitch

• Decision Date: 10 November 1969
• Docket Number: Crim. No. 1587-69.,Crim. No. 1043-68,1044-68
• Citation: 305 F. Supp. 1032
• Parties: UNITED STATES of America v. Milan VUITCH. UNITED STATES of America v. Shirley A. BOYD.
• Court: U.S. District Court — District of Columbia

305 F. Supp. 1032

UNITED STATES of America v. Milan VUITCH.

UNITED STATES of America v. Shirley A. BOYD.

Crim. Nos. 1043-68, 1044-68 Crim. No. 1587-69.

United States District Court District of Columbia.

November 10, 1969.

William H. Collins, Jr., Asst. U. S. Atty., for the United States.

Joseph Sitnick, Washington, D. C., for Vuitch.

Susan Chalker, Legal Aid Agency, for Boyd.

MEMORANDUM OPINION

GESELL, District Judge.

These cases involve motions to dismiss indictment for abortion brought under Title 22, Sec. 201, of the D.C.Code. Vuitch is a physician licensed in the District of Columbia; Boyd is a nurse's aide. There is no relation between the two except that each defendant has moved to dismiss the indictment on the ground that the District of Columbia abortion statute is unconstitutional. The elaborate briefs, replete with authorities and background materials, have been considered, including the brief amicus of the American Civil Liberties Union. The arguments having been completed today, the Court is prepared to rule from the bench because of the public urgency of the matter.

While there have been many prosecutions under this statute over the years, there are very few decisions interpreting it and none of recent vintage. Apart from the wording of the statute itself there is no significant legislative history giving any indication of the underlying congressional intent, either at the time of enactment or subsequent amendment. As far as can be ascertained, this is the first constitutional challenge of the statute and the issues presented in these motions have not been decided in this jurisdiction. The Court has taken judicial notice of the materials cited in the briefs but they are of such common understanding that they need not be elaborated here in any detail.

The statute in question was originally enacted as part of the District of Columbia Code of 1901 and thereafter re-enacted with only slight modification. It provides in pertinent part:

"Whoever * * * produces an abortion * * * on any woman, unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned * *."

A felony penalty of from one to ten years is provided.

Basically the motions attack the statute for vagueness, allege that its practical operation denies equal protection to certain economic and other groups subject to its sanctions and assert a constitutional right of all women, regardless of their circumstances, to determine whether or not they shall bear a child. Constitutional doctrines of recent evolution are referred to by analogy to reinforce the motions.

The statute does not prohibit all abortions. An abortion is permitted where done "as necessary for the preservation of the mother's life or health" and "under the direction of a competent licensed practitioner of medicine." This two-partite exception clearly points up a basic congressional concern with what may broadly be said to be medical factors. The Court has a duty to interpret the statute in a manner consistent with the apparent congressional intent. As the briefs and arguments have emphasized, there are still many health or medical problems created by the varying conditions under which abortions are performed. While there have been many advances in medical knowledge and techniques since 1901, there is nothing before the Court which establishes that abortions may be safely and hygienically performed at various stages of pregnancy except under medical direction. Indeed there is ample evidence, and the parties so assert, that infection and death still often attend clumsy, unskilled terminations of pregnancy performed by non-physicians.

Under these circumstances, it was and still is well within the police power of the Congress to outlaw abortions that are not performed under a "competent", that is, a qualified, licensed, practitioner of medicine.

The true crux of the controversy here concerns the other part of the exception — "as necessary for the preservation of the mother's life or health." It is suggested that these words are not precise; that, as interpreted, they improperly limit the physician in carrying out his professional responsibilities; and that they interfere with a woman's right to avoid childbirth for any reason. The word "health" is not defined and in fact remains so vague in its interpretation and the practice under the act that there is no indication whether it includes varying degrees of mental as well as physical health. While the law generally has been careful not to interfere with medical judgment of competent physicians in treatment of individual patients, the physician in this instance is placed in a particularly unconscionable position under the conflicting and inadequate interpretations of the D.C. abortion statute now prevailing. The Court of Appeals established by such early cases as Peckham v. United States, 96 U.S.App.D.C. 312, 226 F.2d 34 (1955), cert. denied 350 U.S. 912, 76 S.Ct. 195, 100 L.Ed. 800, and Williams v. United States, 78 U.S.App. D.C. 147, 138 F.2d 81, 153 A.L.R. 1213 (1943), that upon the Government establishing that a physician committed an abortion, the burden shifted to the physician to justify his acts. In other words, he is presumed guilty and remains so unless a jury can be persuaded that his acts were necessary for the preservation of the woman's life or health. These holdings, which may well offend the Fifth Amendment of the Constitution, as interpreted in recent decisions such as Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), also emphasize the lack of necessary precision in this criminal statute. The jury's acceptance or nonacceptance of an individual doctor's interpretation of the ambivalent and uncertain word "health" should not determine whether he stands convicted of a felony, facing ten years' imprisonment. His professional judgment made in good faith should not be...