Voinovich v. Women's Med. Professional Corp.

• Decision Date: 23 March 1998
• Docket Number: 97934
• Parties: George V. VOINOVICH, Governor of Ohio, et al., petitioners, v. WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al
• Court: United States Supreme Court

118 S.Ct. 1347

George V. VOINOVICH, Governor of Ohio, et al., petitioners,

v WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al.

No. 97-934.

Supreme Court of the United States

March 23, 1998

The petition for a writ of certiorari is denied.

Justice THOMAS, with whom The Chief Justice and Justice SCALIA join, dissenting.

In 1995, the Ohio General Assembly passed, by an overwhelming majority, House Bill 135, which, among other things, places certain restrictions on abortions after fetal viability. To that end, it provides that-

" (A) No person shall purposely perform or induce or attempt to perform or induce an abortion upon a pregnant woman if the unborn human is viable, unless . . .

" (1) The abortion is performed or induced or attempted to be performed or induced by a physician, and that physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.'' Ohio Rev. Code Ann. §2919.17 (1996).

The District Court enjoined the law as unconstitutional on its face, and a divided panel of the United States Court of Appeals for the Sixth Circuit affirmed. 130 F.3d 187 (1997). The panel majority held that the statute's limitation of postviability abortions is unconstitutionally vague and that it impermissibly lacks an exception for abortions based upon the "mental health'' of the mother. Both of these conclusions are unwarranted extensions of our precedents. Moreover, reflecting our recent reaffirmation of the principle that a State's interests in restricting abortions are at their strongest after viability, see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 2821-2822, 120 L.Ed.2d 674 (1992) (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.), over three-quarters of the States have in place statutes limiting the reasons for which abortions may be performed late in pregnancy. The vast majority of those statutes do not contain an explicit mental health exception. I would therefore grant the State's petition for certiorari to decide the constitutionality of House Bill 135's postviability restrictions.

The panel majority first found unconstitutional the Ohio statute's requirement that a physician's determination of medical necessity be made "in good faith and in the exercise of reasonable medical judgment.'' Ohio Rev. Code Ann. §2919.17(A)(1) (1996). ¹ Relying on our decision in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), the panel held that the "combination of . . . objective and subjective standards without a scienter requirement'' renders the medical necessity exception "unconstitutionally vague.'' 130 F.3d, at 205. The panel explained that the statute does not "adequately notify a physician that certain conduct is prohibited; rather, a physician may be held criminally and civilly liable for adhering to his or her own best medical judgment.'' Id., at 206.

This holding is simply not supported by Colautti. The statute in that case required physicians to adhere to a standard of care calculated to preserve the life and health of the fetus if the physician determined that "the fetus is viable'' or "if there is sufficient reason to believe that the fetus may be viable.'' Colautti v. Franklin, supra, at 39, 99 S.Ct., at 681 (emphasis added; internal quotation marks omitted). Our conclusion that this formulation was void for vagueness in no way suggests that the Ohio statute's more specific language-"in good faith and in the exercise of reasonable medical judgment''-is unconstitutionally vague. The statutory language in Colautti was ambiguous because it could be read as imposing either a purely subjective or a mixed subjective and objective mental requirement, thereby leaving physicians uncertain of the relevant legal standard. Colautti v. Franklin, supra, at 391-394, 99 S.Ct., at 683-685. House Bill 135, by contrast, plainly imposes both a subjective and an objective mental requirement, and thus its commands are clear.

The panel majority appears to have been concerned not so much with vagueness, but rather with the statute's lack of a scienter requirement relating to physician determinations about the medical necessity of an abortion. See 130 F.3d, at 205 (stating that the statute was "especially troublesome'' for this reason). Yet as the majority opinion implicitly recognized, see id., at 204-205, we have never held that, in the abortion context, a scienter requirement is mandated by the Constitution. To the contrary, in Colautti itself, we explicitly declined to address whether "under a properly drafted statute, a finding of bad faith or some other type of scienter would be required before a physician could be held criminally responsible for an erroneous determination of viability.'' See Colautti v. Franklin, 439 U.S., at 396, 99 S.Ct., at 686. We only stated that the vagueness of the statute at issue was "compounded'' by the fact that it lacked a scienter requirement. Id., at 394, 99 S.Ct., at 685; cf. 130 F.3d, at 216 (BOGGS, J., dissenting) (" [T]he principle invoked by the Court in Colautti ....