Ambivalence on Abortion

By legislative repeals and lower-court decisions, U.S. abortion crusaders have lately seemed to be winning their case for liberalized laws all over the country. But one big question remained: What would the Supreme Court say? Last week, in its first abortion opinion, the court gave an ambivalent answer. Friends and foes of abortion could all find support in the court's ruling.

At issue was the case of Dr. Milan Vuitch, arrested three years ago under the anti-abortion law in Washington, D.C. Judge Gerhard A. Gesell ruled the law unconstitutionally vague because it permitted abortions only to preserve a mother's "life or health." Finding that the word health provided "no clear standard to guide either the doctor, the jury or the court," Gesell dismissed the Vuitch indictment. By a 5-to-2 vote last week, the Supreme Court disagreed. Speaking for the majority, Justice Hugo Black held that "health" is a clear standard, the statute is therefore constitutional, and the prosecution of admitted Abortionist Vuitch may proceed.

But Black's opinion also included qualifying language that seems sure to limit enforcement of the D.C. law and others like it. "Health," Black stated, "includes psychological as well as physical well-being." Furthermore he ruled that the prosecution may no longer simply show that an abortion occurred, forcing the defendant physician to prove that the woman's life or health was on the line. Instead, a prosecutor must now actively prove beyond a reasonable doubt that "life or health" was not in danger. If that proof is not sufficiently persuasive, said Black pointedly, the trial judge must, as always, set aside a jury's guilty verdict.

On the whole, the outcome pleased Dr. Vuitch. Though he performs as many as 1,000 abortions a year (at his office three blocks from the White House), he maintains that he does them for medical reasons and not merely on demand. "This is a big step forward," he says. "Now the government lawyer will be in the position of challenging my medical decision. What are the jury members going to decide when a lawyer tries to tell them that the doctor is wrong about a medical matter?"

Other abortion reformers were not so happy; after all, the anti-abortion law did technically survive. The reformers had hoped, in fact, that the court would face larger issues; among them, whether or not wives seeking abortions are protected by the emerging constitutional right of marital privacy. But other cases raising such issues still await action from the court, and last week's decision gave no hint of what the ultimate outcome might be.

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