Williams v. United States, 8451.

• Decision Date: 27 September 1943
• Docket Number: No. 8451.,8451.
• Citation: 138 F.2d 81
• Parties: WILLIAMS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 F.2d 81 (1943)

WILLIAMS et al. v. UNITED STATES.

No. 8451.

United States Court of Appeals for the District of Columbia.

Argued June 1, 1943.

Decided September 27, 1943.

Messrs. Ben Lindas and Ethelbert B. Frey, both of Washington, D. C., for appellants.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and John P. Burke, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.

ARNOLD, Associate Justice.

The defendants were convicted of the crime of abortion. The indictment contained the negative averment that the operation was not necessary to preserve the life or health of the woman on whom it was performed. No evidence was offered by the government to support this negative averment, nor was the issue raised by the defendants. Their only defense was a denial that they had performed the operation.

At the close of the trial the defendants moved for a directed verdict and later for a new trial on the ground that the prosecution had failed to show that the abortion was not necessary to preserve the life or health of the complaining witness. The defendants appeal on the ground that the trial court erred in denying these motions. The sole question before us is whether the statute making abortion a crime in the District of Columbia puts the burden on the prosecution to prove as a part of its case that the operation was not necessary for life or health.

The statute under which the indictment was drawn reads as follows: "Whoever, with intent to procure the miscarriage of any woman, prescribes or administers to her any medicine, drug, or substance whatever, or with like intent uses any instrument or means, unless when necessary to preserve her life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned for not more than five years; or if the woman or her child dies in consequence of such act, by imprisonment for not less than three nor more than twenty years."¹

The defendants rely upon a familiar doctrine of statutory construction to the effect that where an exception is incorporated in the enacting clause of a criminal statute, the burden of proof is on the prosecution to establish the fact that the defendant is not within the exception. But this rule is not one which can be mechanically applied. In referring to the rule, both this Court² and the Supreme Court of the United States³ have pointed out that the real question is whether the exception is so incorporated with the clause defining the offense that it becomes in fact a part of the description. That question cannot be determined by the mere position of the exception in the text.⁴

In determining whether the exception is in fact a part of the description of the offense we must consider first whether the act in itself, without the exception, is ordinarily dangerous to society or involves moral turpitude. If so, it does not seem unjust to compel the defendants to offer evidence to justify their conduct because of necessity to preserve life or health. This view, we think, is obvious when we consider the practical effect on law enforcement if the prosecution is required to prove in the first instance that the defendants are not within the exception. It is a fair assumption that Congress did not intend to put difficulties in the way of the prosecution unnecessary in the interest of ordinary fairness.⁵ Therefore, in a situation where the facts relating to the exception are difficult for the state to obtain and are at the same time peculiarly within the knowledge of the defendants, the exception is usually considered as a defense or justification and not as part of the description of the offense itself.⁶

These considerations have been well expressed by Mr. Justice Cardozo in discussing a similar question, — the constitutionality of a statute which shifted the burden of proof in a criminal prosecution to the defendant. He said: "The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, vol. 5, §§ 2486, 2512, and cases cited. * * * For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance * * * or, if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. * * * The list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. One can do no more than adumbrate them; sharper definition must await the specific case as it arises." Morrison v. California.⁷ The common sense tests laid down in the above opinion are as relevant in determining where the legislature intended to place the burden of proof as they are to the constitutionality of shifting that burden.

Applying these tests to the statute before us it is apparent that abortion is generally regarded as heinous in character. In the great majority of the states it cannot be justified even to preserve the victim's health.⁸ Her life must be in danger. Arguments that abortion should be permitted to avoid social disgrace or poverty or illegitimacy have frequently been made, pointing out the prevalence of the operation and the tragic consequences of driving those who seek to escape childbirth to illegitimate practitioners.⁹ Such arguments have never changed the abortion laws of any state. The performance of an abortion for any of these purposes is so offensive to our moral conception that it does not seem unjust to put on the defendant who has committed an abortion the burden of producing evidence that the act was justified on therapeutic grounds.¹⁰

Applying the second test, the effective enforcement of the law, it is clear that whether an abortion was necessary on therapeutic grounds should be peculiarly within the knowledge of the person who performed it. He should not undertake the operation unless he is convinced in good faith of its therapeutic necessity. No other person is in as good a position to testify as to the necessity of the operation. To compel the prosecution to introduce evidence in this case that the operation was unnecessary for health is to raise an artificial issue; the real issue of fact raised by the defendants is whether they performed the operation. In cases where the victim dies as a result of the operation, a requirement that the state prove its therapeutic necessity would too often put an impossible handicap on the prosecution, in the absence of the confession of the defendants themselves.¹¹

We, therefore, conclude that the exception in the abortion statute before us was intended to furnish the defendants an opportunity for justification and not to be part of the description of the offense itself.¹²

We are supported in this conclusion by the particularly onerous handicap which would follow placing the burden of proof on the government under the somewhat unusual exception in the District of Columbia statute. This statute represents a compromise between morals and hygiene far in advance of the law in most jurisdictions. The majority of states permit abortion only to save the life of the mother.¹³ Colorado¹⁴ and New Mexico¹⁵ relax this to permit operations when necessary to prevent "serious and permanent bodily injury". Only in the District of Columbia is abortion permitted in order to preserve "health". This is a broad exception without precise limits. It is easy for a physician who directs an abortion in good faith to testify that it was necessary for health,¹⁶ and such evidence would be extremely difficult to refute. Every consideration of practical enforcement of this liberal section of the Code requires that the exception be treated as a matter of defense and justification. It gives physicians a broader...