U.S. Supreme Court
SIMOPOULOS v. VIRGINIA, 462 U.S. 506 (1983)
462 U.S. 506
SIMOPOULOS v. VIRGINIA
APPEAL FROM THE SUPREME COURT OF VIRGINIA
Argued November 30, 1982
Decided June 15, 1983
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 Virginia Supreme Court affirmed appellant's
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 Reproductive
[462 U.S. 506, 507] Health, Inc., ante, p. 416, and Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, p. 476,
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 clinics.
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.
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.
Roy Lucas argued the cause for appellant. With him on the briefs was William
William G. Broaddus, Chief Deputy Attorney General of Virginia, argued the
cause for appellee. With him on the brief were Gerald L. Baliles, Attorney
General, and Thomas D. Bagwell and Julia Krebs-Markrich, Assistant Attorneys
[Footnote *] 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
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.
[462 U.S. 506, 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
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. 506, 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
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, followup 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.1
Appellant was indicted2
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.
506, 510] 277 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. 506, 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.3 Virginia
law does not, however, permit a [462 U.S. 506,
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
that defines "hospital" to include "outpatient . . . hospitals."5 Section 20.2.11 of the [462 U.S. 506, 513] Department of Health's Rules
and Regulations for the Licensure of Outpatient Hospitals in Virginia (1977)
(regulations)6 [462 U.S. 506, 514] defines "outpatient hospitals" in
pertinent part as "[i]nstitutions . . . which primarily provide facilities for
the performance of surgical procedures on outpatients"7 and provides that second-trimester abortions may be performed
in these clinics.8 Thus, under Virginia law, a second-trimester abortion
[462 U.S. 506, 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. 506, 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. 506, 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 "[u]rges
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.9
His challenge [462 U.S. 506, 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.10 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.11 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. 506, 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 150.12 As we
emphasized in Roe, "[t]he 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
The judgment of the Supreme Court of Virginia is
[Footnote 1] Except as permitted by
statute, persons performing an abortion are guilty of a Class 4 felony under
Virginia law and subject to mandatory license revocation. Va. Code 18.2-71,
54-316(3), 54-317(1), 54.321.2 (1982). A Class 4 felony is punishable by a
sentence of 2 to 10 years in prison. Va. Code 18.2-10(d) (1982).
[Footnote 2] The indictment alleges a
violation of Va. Code 18.2-71 (1982), which provides:
"Except as provided in other sections of this article, if any person
administer to, or cause to be taken by a woman, any drug or other thing, or
use means, with intent to destroy her unborn child, or to produce abortion
or miscarriage, and thereby destroy such child, or produce such abortion or
miscarriage, he shall be guilty of a Class 4 felony."
The Virginia Code sets forth four exceptions to this statute: there is no
criminal liability if the abortion (i) is performed within the first trimester,
18.2-72; (ii) is performed in a licensed hospital in the second trimester,
18.2-73; (iii) is performed during the third trimester under certain
circumstances, 18.2-74; and (iv) is necessary to save the woman's life,
18.2-74.1. The indictment here alleged a violation of 18.2-71 and expressly
negated any defense of hospitalization under 18.2-73 and any first-trimester
defense under 18.2-72. The indictment did not, however, rebut the other
[Footnote 3] A physician's office is
explicitly excluded from the hospital licensing statutes and regulations unless
the office is used principally for performing surgery. Va. Code 32.1-124(5)
(1979). "Surgery" is not defined. Appellant contends that whether his facility
principally performs surgery is a question of fact that has not been resolved,
and that it is uncertain whether his clinic may be licensed as a "hospital." He
notes that after he performed the abortion on P. M. he requested a certificate
of need, see 32.1-102.3 (Supp. 1983), but was informed by the Office of the
Attorney General that his "clinic-office cannot be licensed as a hospital" and
that "if you wish to perform this type of procedure, you must, in essence, build
a hospital to do it." App. to Reply Brief for Appellant 3a, 4a. Appellant did
not seek a license before he performed the abortion at issue here, nor does he
now argue that his clinic would meet the requirements of the Virginia statute
and regulations. Rather, he broadly attacks the validity of the state
hospitalization requirements as applied to second-trimester abortions. Thus, it
is irrelevant to the issue before us whether appellant's clinic and his
procedures would have complied with the Virginia regulations.
[Footnote 4] The Supreme Court of Virginia
views the word "hospital" in 18.2-73 as referring to the definition of that term
in 32.1-123.1. This is made clear by the court's general reference in its
opinion to Title 32.1 of the Virginia Code, the Title of the Code that contains
many of Virginia's health laws:
"The state is empowered to license and regulate hospitals, clinics, home
health agencies, and other medical care facilities, see generally, Title
32.1 of the Code, and to fix and enforce different standards of medical care
for different facilities. The General Assembly has decided that medical
procedures employed in second-trimester abortions must be performed in
hospitals. Based upon the evidence in this record, we are of the opinion
that the hospital requirement is reasonably related to the State's
compelling interest in preserving and protecting maternal health." 221 Va.,
at 1075, 277 S. E. 2d, at 204.
There is no basis for assuming that the court interpreted "hospital" in
18.2-73 any differently from its interpretation in Title 32.1, and specifically
in 32.1-123.1. See n. 5, infra.
[Footnote 5] Section 32.1-123.1 provides:
"`Hospital' means any facility in which the primary function is the
provision of diagnosis, of treatment, and of medical and nursing services,
surgical or nonsurgical, for two or more nonrelated individuals, including
hospitals known by varying nomenclature or designation such as sanatoriums,
sanitariums and general, acute, short-term, long-term, outpatient and
The definition of "hospital" in effect in 1975 when 18.2-73 was enacted is
similar. See Va. Code 32.298(2) (Supp. 1975) (repealed by 1979 Va. Acts, ch.
711). It specifically included at that time "out-patient surgical hospitals
(which term shall not include the office or offices of one or more physicians or
surgeons unless such office or offices are used principally for performing
[Footnote 6] The regulations were
promulgated pursuant to the State Board of Health's general authority to adopt
rules and regulations prescribing minimum standards for hospitals. This
authority permits it to
"classify hospitals in accordance with the character of treatment, care, or
service rendered or offered, and prescribe the minimum standards and
requirements for each class in conformity with provisions of this chapter,
with the guiding principles expressed or implied herein, and with due regard
to and in reasonable conformity to the standards of health, hygiene,
sanitation, and safety as established and recognized by the medical
profession and by specialists in matters of public health and safety, having
due regard to the availability of physicians, surgeons, nurses and other
assistants, and the cost and expense to the hospital and the resulting costs
to the patients." Va. Code 32-301 (1973) (repealed by 1979 Va. Acts, ch.
711) (similar rulemaking authority currently is granted in Va. Code 32.1-12
and 32.1-127 (1979)).
The first draft of the regulations differed considerably from the regulations
that the Board finally approved. See Department of Health, Draft I, Rules and
Regulations for the Licensure of Outpatient Hospitals in Virginia (Oct. 27,
1976). The most important difference was that the requirements now in Part II of
the regulations were applicable to all outpatient facilities in which abortions
could be performed, regardless of the trimester.
The State Board of Health gave preliminary approval to the proposed
regulations on December 1, 1976, and a public hearing was held January 26, 1977.
Dr. William R. Hill, a member of the Board, presided at this hearing, and staff
present from the Department included two doctors and the Director of the Bureau
of Medical and Nursing Facilities Services. Witnesses included the Associate
Executive Director of the Virginia Hospital Association; a representative of
five outpatient abortion clinics in the State; representatives of two abortion
clinics, the Richmond Medical Center and the Hillcrest Clinic; a professor from
Eastern Virginia Medical School representing Planned Parenthood of Southside
Tidewater and the Tidewater OBGYN Society; the Medical Director of the
Ambulatory Surgical Center of Leigh Memorial Hospital; the Administrator of
Leigh Memorial Hospital; a representative of the Virginia Society for Human
Life; and a representative of the Northern Virginia Medical Center. See
Commonwealth of Virginia Department of Health, Public Hearing In Re: Proposed
Rules and Regulations for the Licensure of Outpatient Hospitals in Virginia
[462 U.S. 506, 514] (Jan. 26, 1977). The Executive Director of the
Virginia Hospital Association stated that "[i]n general, they are a good set of
standards and have our support." Id., at 4. The abortion clinics were concerned,
however, about the imposition of the regulations on outpatient abortion clinics
then performing first-trimester abortions. The clinics acknowledged that during
the second trimester "the State may regulate the [abortion] procedure in the
interest of maternal health." Id., at 7. But the clinics specifically
"propose[d] that clinics or other facilities that perform abortions during the
first trimester be specifically excluded from the Rules and Regulations for the
Licensure of Outpatient Hospitals in Virginia." Id., at 26. See also id., at 28.
The Medical Director of the Ambulatory Surgical Center of Leigh Memorial
Hospital, concerned about the need to set high standards for outpatient surgical
hospitals in the State, agreed that the Board should not "compromise" the strict
standards needed for outpatient surgical hospitals in order to include these
first-trimester outpatient abortion clinics within the same set of regulations.
See id., at 30. Following the hearing, the Board added Part III, the regulations
of which apply only to clinics doing first-trimester abortions. See nn. 8, 12,
infra. It therefore is clear that Virginia has recognized the need for discrete
and different sets of regulations for the two periods. The Board gave its final
approval, and the regulations became effective on June 30, 1977. The abortion
for which appellant was prosecuted was performed on November 10, 1979, some two
years and five months later.
We note that new but similar regulations now supersede the regulations in
effect when appellant performed the abortion for which he was prosecuted. See
Department of Health, Rules and Regulations for the Licensure of Hospitals in
Virginia, Pt. IV (1982). These new regulations were promulgated pursuant to Va.
Code 32.1-12, 32.1-127 (1979), enacted in 1979.
[Footnote 7] Section 32.1-125 of the Code
provides: "No person shall establish, conduct, maintain, or operate in this
Commonwealth any hospital . . . unless such hospital . . . is licensed as
provided in this article." See also Va. Regs. (Outpatient Hospitals) 30.1 (1977)
(similar provision specifically governing outpatient surgical hospitals).
[Footnote 8] Part II of the regulations
sets minimum standards for outpatient surgical hospitals that may perform
second-trimester abortions. This [462 U.S. 506,
interpretation is confirmed by several sections in Part II, i. e., 43.6.2,
43.6.3, 43.7.3(c), 43.8.4, 43.8.5, 43.9.5, all of which refer to abortion
services, and by the history of Part III, see n. 6, supra. Moreover, the State's
counsel at oral argument represented that facilities licensed pursuant to Part
II legally may perform second-trimester abortions. Tr. of Oral Arg. 33.
Virginia uses the term "outpatient abortion clinics" to refer specifically to
those facilities meeting the minimum standards of Part III of the regulations.
See Va. Regs. (Outpatient Hospitals) i (1977). Facilities meeting these
standards are limited to performing abortions only during the first trimester of
pregnancy. Ibid. See id., 62.1.2 ("Any procedure performed to terminate a
pregnancy [in an outpatient abortion clinic] shall be performed prior to the end
of the first trimester (12th week amenorrhea)").
[Footnote 9] See nn. 3, 6, supra; 5 Record
55-56 (appellant acknowledging existence of the outpatient hospital license;
stating that he was seeking a license; but [462
U.S. 506, 518] denying that he knew of the licensing program when the
abortion was performed).
[Footnote 10] Appellant's reply brief
does criticize the Virginia regulations, but not individually or on specific
grounds, instead making only facial challenges in the broadest language and in
conclusory terms: that the record is silent on the applicability of those
regulations to his facility; that the record does not show whether any
outpatient surgical hospitals exist in Virginia or whether, if they exist, they
allow second-trimester abortions; that the record is silent on the
reasonableness of the regulations; that he had no opportunity to defend against
the regulations at trial; that it is uncertain whether, if he had applied for an
outpatient hospital license, it would have been granted; that obtaining a
license is an arduous process; that Virginia courts have had no opportunity to
construe the "licensing statutes and regulations"; and that Part II of the
regulations does not cover an outpatient surgical hospital where
second-trimester abortions are performed. Some of these arguments are simply
meritless, see n. 8, supra, and others are irrelevant, see n. 3, supra, and none
has been raised below.
[Footnote 11] See 8 Record 196a, 214a;
Brief for Appellant in No. 801107 (Va. Sup. Ct.), p. 35; Juris. Statement 16;
Brief for Appellant 32, 43, n. 75, 46.
[Footnote 12] Appellant argues that Part
III of the regulations, covering first-trimester abortion clinics, requires the
same services and equipment as Part II. In fact, Part III has detailed
regulations that do not appear in Part II. See, e. g., Va. Regs. (Outpatient
Hospitals) 63.1.1(b), 63.3, 64.2.5(a)-(m) (1977). Appellant contends that, given
these extensive regulations for first-trimester abortion clinics, the only way
to require more technological support for second-trimester abortions would be to
restrict them to acute-care, general hospitals. The only issue before us,
however, relates to second-trimester abortions.
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. 506, 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).*
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. 506, 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.
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 [462 U.S.
506, 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.
[Footnote *] An in-hospital abortion was
also unlawful unless (a) it was necessary to protect the life or health of the
mother, (b) the pregnancy was the product of rape or incest, or (c) there was a
substantial medical likelihood that the child would be born with an irremediable
and incapacitating mental or physical defect. 1970 Va. Acts, ch. 508. [462 U.S. 506, 523]
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