US SUPREME COURT DECISIONS

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 conviction.

Held:

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. 462 U. S. 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 chanrobles.com-red

Page 462 U. S. 507

Health, Inc., ante p. 462 U. S. 416, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante p. 462 U. S. 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. 462 U. S. 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. 462 U. S. 519. STEVENS, J., filed a dissenting opinion, post, p. 462 U. S. 520. chanrobles.com-red

Page 462 U. S. 508