January’s “March for Life,” denouncing the 1973 Roe v. Wade decision, was conducted virtually due to the pandemic. This year, pro-life supporters should commemorate April 21 as the 50th anniversary of the real opening of abortion in America: U.S. v. Vuitch, which the Supreme Court announced April 21, 1971.
Vuitch was the first abortion case that the Supreme Court ever heard. The ball got rolling in the 1965 case of Griswold v. Connecticut, in which the Court struck down a long-defunct law that prohibited the dispensing of contraceptives, even to married couples. In that case the Court discovered a “right to privacy,” which it emphasized was marital privacy. Justice William O. Douglas (though thrice-divorced himself) called marriage “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
Griswold was not at all controversial, as the American public had overwhelmingly dropped its 19th-century opposition to birth control or “family planning.” But in 1972 the Court extended the right to unmarried couples. In Eisenstadt v. Baird, Justice William J. Brennan Jr. declared that the right to privacy extended to the choice of “whether to bear or beget a child.” He was laying the groundwork to move from contraception to abortion rights.
At the time, every state criminalized abortion to some degree or other. Four states had laws about as permissive as those of New York, which permitted abortion on demand up to 24 weeks, but only to save maternal life after that. About a dozen states had adopted a law like the one proposed by the American Law Institute, which permitted abortions if pregnancy would “gravely impair the physical or mental health of the mother,” or in cases of fetal deformity, or for pregnancies that resulted from rape or incest. But they recommended that at least two physicians to give written reasons for the necessity of the abortion to a hospital committee. A few allowed abortion for maternal “safety” or where pregnancy and delivery would pose “serious or permanent injury.” The rest had laws like Texas’s, which allowed abortion, even the earliest ones, only to save maternal life.
The District of Columbia law, enacted by Congress in 1901, was peculiar in that it contained a “health” exception. There seems to be no evidence as to how this provision got into the law or why a proposal to delete it was introduced and defeated in 1953. Dr. Milan Vuitch, a D.C. abortionist, challenged the law after having been arrested and acquitted several times under it. Vuitch claimed that the law was invalid for “vagueness” — no physician could be sure that he had sufficient reason for performing abortions under it.
Vuitch won his case in the District of Columbia district court. Judge Gerhard Gesell held that the law “fails to give that certainty which due process of law considers essential in criminal statutes.” He also rejected the presumption of guilt that prevailed in abortion cases, wherein the burden of proof lay on the physician to prove that the abortion was medically necessary. Precedents held that the inversion of the usual presumption of innocence was justified in abortion cases because the practice was “heinous.” Gesell went further and claimed that “It is legally proper and indeed imperative that uniform medical abortion services be provided for all segments of the population, the poor as well as the rich. Principles of equal protection … require that policies in our public hospitals be liberalized immediately.”
The government appealed and won. The U.S. Supreme Court held that the D.C. law was not unconstitutionally vague. Justice Harry Blackmun, who later would write Roe, noted that the “health” exception in the statute “includes psychological as well as physical well-being, and as thus construed is not overly vague.” He agreed with the district judge that physicians did not have to prove their innocence. Justice William O. Douglas, who had fabricated the “right to privacy” six years earlier, plumbed the depths of judicial idiocy by quoting a claim that “those who believe abortion is murder need not avail themselves of it.”
Dr. Vuitch was back in business, performing a thousand abortions annually. D.C. briefly became an abortion mecca, with a law even more permissive than New York’s. The psychological “health” exception was crucial. Pro-abortion advocates had known for decades that hardly any abortions were necessary for physical health; almost no pregnancy was ever life-threatening. In 1954, Alan Guttmacher, a leading abortion advocate, wrote an article titled “The Shrinking Non-Psychiatric Indications for Therapeutic Abortion.” No one has been convicted of performing an abortion for insufficient reasons. Abortionists like Kermit Gosnell can be convicted for infanticide or health-code violations. But Gosnell could have performed any of his late-term abortions by following the proper procedures. In 1984, one Michigan abortionist was convicted because he gave no reason, but he only had his license suspended.
The same thing happened to Milan Vuitch. He botched so many legal abortions, killing or injuring so many women, that he lost his license in 1984.
The Vuitch case was the crucial preparation for Roe v. Wade because of Roe’s companion case, Doe v. Bolton. Roe struck down an older, maternal-life-only Texas statute. But Doe struck down a recent, more permissive Georgia law, which contained a “health” exception. But the law required abortionists to get the permission of a hospital board, in which they would have to prove the medical necessity of the abortion. This, the Court held, was too restrictive. And Blackmun again emphasized the breadth of the “health” exception, that it included “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.”
As emotional and psychological health are subjective, this amounted to “abortion on demand.” What Vuitch had done for the District of Columbia, Roe and Doe did for the entire nation.
Paul Moreno is the William and Berniece Grewcock Chair in Constitutional History, Professor of History, Dean of Social Sciences at Hillsdale College.
