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decided: June 15, 1983.



Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, and Blackmun, JJ., joined, and in Parts I and II of which White, Rehnquist, and O'connor, JJ., joined. O'connor, J., filed an opinion concurring in part and concurring in the judgment, in which White and Rehnquist, JJ., joined, post, p. 519. Stevens, J., filed a dissenting opinion, post, p. 520.

Author: Powell

[ 462 U.S. Page 508]

 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., ante, p. 416, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, p. 476. The principal issue here is whether Virginia's mandatory hospitalization requirement is constitutional.


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, Va., at four local hospitals, and at his clinic in Falls Church, Va. 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 boyfriend. 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

[ 462 U.S. Page 509]

     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 boyfriend took her home. Police found the fetus later that day and began an investigation.*fn1

Appellant was indicted*fn2 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. 221 Va. 1059,

[ 462 U.S. Page 510277]

     S. E. 2d 194 (1981). This appeal followed. We noted probable jurisdiction, 456 U.S. 988, and now affirm.


Appellant raises two issues that do not require extended treatment. He first contends that Va. Code § 18.2-71 (1982) 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 (1971); and (ii) the prosecution failed to meet its burden of persuasion, as required by Patterson v. New York, 432 U.S. 197 (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 Columbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See 402 U.S., at 70. 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 (1982); Mullaney v. Wilbur, 421 U.S. 684, 701-703, nn. 28, 30, 31 (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.


We consistently have recognized and reaffirm today that a State has an "important and legitimate interest in the health

[ 462 U.S. Page 511]

     of the mother" that becomes "'compelling' . . . at approximately the end of the first trimester." Roe v. Wade, 410 U.S. 113, 163 (1973). See City of Akron, ante, at 428. This interest embraces the facilities and circumstances in which abortions are performed. See 410 U.S., at 150. Appellant argues, however, that Virginia prohibits all nonhospital 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.


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.*fn3 Virginia law does not, however, permit a

[ 462 U.S. Page 512]

     physician licensed in the practice of medicine and surgery to perform an abortion during the second trimester of pregnancy unless "such procedure is performed in a hospital licensed by the State Department of Health." Va. Code § 18.2-73 (1982). The Virginia abortion statute itself does not define the term "hospital." This definition is found in Va. Code § 32.1-123.1 (1979),*fn4 that defines "hospital" to include "outpatient . . . hospitals."*fn5 Section 20.2.11 of the

[ 462 U.S. Page 513]

     Department of Health's Rules and Regulations for the Licensure of Outpatient Hospitals in Virginia (1977) (regulations)*fn6

[ 462 U.S. Page 514]

     defines "outpatient hospitals" in pertinent part as "[institutions] . . . which primarily provide facilities for the performance of surgical procedures on outpatients"*fn7 and provides that second-trimester abortions may be performed in these clinics.*fn8 Thus, under Virginia law, a second-trimester abortion

[ 462 U.S. Page 515]

     may be performed in an outpatient surgical hospital provided that facility has been licensed as a "hospital" by the State.

The Virginia regulations applicable to the performance of second-trimester abortions in outpatient surgical hospitals are, with few exceptions, the same regulations applicable to all outpatient surgical hospitals in Virginia, and may be grouped for purposes of discussion into three main categories. The first grouping relates to organization, management, policies, procedures, and staffing. These regulations require personnel and facilities "necessary to meet patient and program needs." Va. Regs. (Outpatient Hospitals) § 40.3 (1977); see also § 40.1. They also require a policy and procedures manual, § 43.2, an administrative officer, § 40.6, a licensed physician who must supervise clinical services and perform surgical procedures, § 42.1, and a registered nurse to be on duty at all times while the facility is in use, § 42.2. The second category of requirements outlines construction standards for outpatient surgical clinics, but also provides that "deviations from the requirements prescribed herein may be approved if it is determined that the purposes of the minimum requirements have been fulfilled," § 50.2.1. There are also construction requirements that set forth standards for the public areas, clinical areas, laboratory and radiology services,

[ 462 U.S. Page 516]

     §§ 52.1, 52.2, 52.3, and general building, §§ 50.6.1, 50.7.1, 50.8.1, 52.4. The final group of regulations relates to patient care services. Most of these set the requirements for various services that the facility may offer, such as anesthesia, § 43.1, laboratory, §§ 43.6.1, 64.1.3, 64.1.4, and pathology, §§ 43.6.3, 64.2.4. Some of the requirements relate to sanitation, laundry, and the physical plant. §§ 43.2, 43.10, 43.11, 43.12.6. There are also guidelines on medical records, § 43.7, preoperative admission, § 43.8, and postoperative recovery, § 43.9. Finally, the regulations mandate some emergency services and evacuation planning. §§ 43.4.1, 43.5.


It is readily apparent that Virginia's second-trimester hospitalization requirement differs from those at issue in City of Akron, ante, at 431-432, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, at 481. In those cases, we recognized the medical fact that, "at least during the early weeks of the second trimester[,] D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital." City of Akron, ante, at 437. The requirements at issue, however, mandated that "all second-trimester abortions must be performed in general, acute-care facilities." Ashcroft, ante, at 481. In contrast, the Virginia statutes and regulations do not require that second-trimester abortions be performed exclusively in full-service hospitals. Under Virginia's hospitalization requirement, outpatient surgical hospitals may qualify for licensing as "hospitals" in which second-trimester abortions lawfully may be performed. Thus, our decisions in City of Akron and Ashcroft are not controlling here.

In view of its interest in protecting the health of its citizens, the State necessarily has considerable discretion in determining standards for the licensing of medical facilities. Although its discretion does not permit it to adopt abortion regulations that depart from accepted medical practice, it does have a legitimate interest in regulating second-trimester

[ 462 U.S. Page 517]

     abortions and setting forth the standards for facilities in which such abortions are performed.

On their face, the Virginia regulations appear to be generally compatible with accepted medical standards governing outpatient second-trimester abortions. The American Public Health Association (APHA) (Resolution No. 7907), although recognizing "that greater use of the Dilatation and Evacuation procedure makes it possible to perform the vast majority of second trimester abortions during or prior to the 16th week after the last menstrual period," still "[urges] endorsement of the provision of second trimester abortion in free-standing qualified clinics that meet the state standards required for certification." APHA, The Right to Second Trimester Abortion 1, 2 (1979). The medical profession has not thought that a State's standards need be relaxed merely because the facility performs abortions: "Ambulatory care facilities providing abortion services should meet the same standards of care as those recommended for other surgical procedures performed in the physician's office and outpatient clinic or the free-standing and hospital-based ambulatory setting." American College of Obstetricians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic Services 54 (5th ed. 1982). See also id., at 52 ("Free-standing or hospital-based ambulatory surgical facilities should be licensed to conform to requirements of state or federal legislation"). Indeed, the medical profession's standards for outpatient surgical facilities are stringent: "Such facilities should maintain the same surgical, anesthetic, and personnel standards as recommended for hospitals." Ibid.

We need not consider whether Virginia's regulations are constitutional in every particular. Despite personal knowledge of the regulations at least by the time of trial, appellant has not attacked them as being insufficiently related to the State's interest in protecting health.*fn9 His challenge

[ 462 U.S. Page 518]

     throughout this litigation appears to have been limited to an assertion that the State cannot require all second-trimester abortions to be performed in full-service general hospitals. In essence, appellant has argued that Virginia's hospitalization requirements are no different in substance from those reviewed in the City of Akron and Ashcroft cases.*fn10 At the same time, however, appellant took the position -- both before the Virginia courts and this Court -- that a state licensing requirement for outpatient abortion facilities would be constitutional.*fn11 We can only assume that by continuing to challenge the Virginia hospitalization requirement appellant either views the Virginia regulations in some unspecified way as unconstitutional or challenges a hospitalization requirement that does not exist in Virginia. Yet, not until his reply brief in this Court did he elect to criticize the regulations apart from his broadside attack on the entire Virginia hospitalization requirement.

Given the plain language of the Virginia regulations and the history of their adoption, see n. 6, supra, we see no reason to doubt that an adequately equipped clinic could, upon

[ 462 U.S. Page 519]

     proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions. We conclude that Virginia's requirement that second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the State's compelling interest in "protecting the woman's own health and safety." Roe, 410 U.S., at 150.*fn12 As we emphasized in Roe, "[the] State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." Ibid. Unlike the provisions at issue in City of Akron and Ashcroft, Virginia's statute and regulations do not require that the patient be hospitalized as an inpatient or that the abortion be performed in a full-service, acute-care hospital. Rather, the State's requirement that second-trimester abortions be performed in licensed clinics appears to comport with accepted medical practice, and leaves the method and timing of the abortion precisely where they belong -- with the physician and the patient.


The judgment of the Supreme Court of Virginia is



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

JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

I agree with the Court's treatment of the appellant's arguments based on United States v. Vuitch, 402 U.S. 62 (1971),

[ 462 U.S. Page 520]

     and Patterson v. New York, 432 U.S. 197 (1977). Accordingly, I join Parts I and II of the Court's opinion.

I concur in the judgment of the Court insofar as it affirms the conviction. For reasons stated in my dissent in Akron v. Akron Center for Reproductive Health, ante, p. 416, I do not agree that the constitutional validity of the Virginia mandatory hospitalization requirement is contingent in any way on the trimester in which it is imposed. Rather, I believe that the requirement in this case is not an undue burden on the decision to undergo an abortion.

JUSTICE STEVENS, dissenting.

Prior to this Court's decision in Roe v. Wade, 410 U.S. 113 (1973), it was a felony to perform any abortion in Virginia except in a hospital accredited by the Joint Committee on Accreditation of Hospitals and licensed by the Department of Health, and with the approval of the hospital's Abortion Review Board (a committee of three physicians).*fn* In 1975, the Virginia Code was amended to authorize additional abortions, including any second-trimester abortion performed by a physician "in a hospital licensed by the State Department of Health or under the control of the State Board of Mental Health and Mental Retardation." Va. Code § 18.2-73 (1982).

The amended statute might be interpreted in either of two ways. It might be read to prohibit all second-trimester abortions except those performed in a full-service, acute-care hospital facility. Or it might be read to permit any abortion performed in a facility licensed as a "hospital" in accord with any regulations subsequently adopted by the Department of

[ 462 U.S. Page 521]

     Health. The Court today chooses the latter interpretation. See ante, at 512-514.

There is reason to think the Court may be wrong. At the time the statute was enacted, there were no regulations identifying abortion clinics as "hospitals." The structure of the 1975 amendment suggests that the Virginia General Assembly did not want to make any greater change in its law than it believed necessary to comply with Roe v. Wade, and it may well have thought a full-service, acute-care hospitalization requirement constitutionally acceptable. Moreover, the opinion below does not suggest that the Supreme Court of Virginia believed the term "hospital" to incorporate licensed abortion clinics. It only discussed testimony pertaining to full-service, acute-care hospitals like Fairfax Hospital. See 221 Va. 1059, 1073, 277 S. E. 2d 194, 203. And it stated that "two hospitals in Northern Virginia and 24 hospitals located elsewhere in the State were providing abortion services in 1977," id., at 1075, 277 S. E. 2d, at 204, again referring to acute-care facilities. The opinion refers to "clinics" only once, as part of a general statement concerning the variety of medical care facilities the State licenses and regulates; even there, the term is included in the list as a category that is distinct from "hospitals." Id., at 1074, 277 S. E. 2d, at 204.

[ 462 U.S. Page 522]

     On the other hand, the Court may well be correct in its interpretation of the Virginia statute. The word "hospital" in § 18.2-73 could incorporate by reference any institution licensed in accord with Va. Code § 32.1-123.1 (1979) and its implementing regulations. See ante, at 512-514. It is not this Court's role, however, to interpret state law. We should not rest our decision on an interpretation of state law that was not endorsed by the court whose judgment we are reviewing. The Virginia Supreme Court's opinion was written on the assumption that the Commonwealth could constitutionally require all second-trimester abortions to be performed in a full-service, acute-care hospital. Our decision today in City of Page 522} Akron v. Akron Center for Reproductive Health, Inc., ante, p. 416, proves that assumption to have been incorrect. The proper disposition of this appeal is therefore to vacate the judgment of the Supreme Court of Virginia and to remand the case to that court to reconsider its holding in the light of our opinion in Akron.

I respectfully dissent.


* Sylvia A. Law, Nadine Taub, and Ellen J. Winner filed a brief for the Committee for Abortion Rights and Against Sterilization Abuse et al. as amici curiae urging reversal.

Dennis J. Horan, Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen filed a brief for Americans United for Life as amicus curiae urging affirmance.

Briefs of amici curiae were filed by Alan Ernest for the Legal Defense Fund for Unborn Children; by Phyllis N. Segal, Judith I. Avner, and Jemera Rone for the National Organization for Women et al.; by David B. Hopkins for the American Public Health Association; by Nancy Reardan for Women Lawyers of Sacramento et al.; and by Susan Frelich Appleton and Paul Brest for Certain Law Professors.

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