United States v. Vuitch

While agreeing with the Court's opinion regarding jurisdiction over the appeal, Justice Douglas felt that the D.C. abortion law did not meet the requirements of procedural due process. He insisted that a physician's judgment to determine the necessity of a woman's abortion was "highly subjective [and] dependent on the training and insight of the particular physician." He then raised a question regarding the standard of the D.C. anti-abortion law. "Is the statutory standard so easy to manipulate that although physicians can make good-faith decisions based on the standard, juries can nonetheless make felons out of them?" To further his point, Douglas quoted from Roe v. Wade, then making its way through the Texas courts: A court "evaluating the statutory standard" dealing with abortion laws in Texas, was convinced that the law was unconstitutionally vague:

How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion was not performed? . . . Is it sufficient if having the child will shorten the life of the woman by a number of years?

Douglas reminded the Court that "abortion statutes [are] heavily weighted with religious teachings and ethical concepts . . . " This encouraged prejudice in the jury. He felt "the drafting of [new] abortion laws [should] protect good-faith medical practitioners from the treacheries of the present law."