Simopoulos v. Virginia (1983)
A Virginia statute made it a crime for an abortion after the
first trimester to be performed outside of a "licensed hospital,"
which was defined by law to include an "outpatient hospital."
The statute did not apply, however, if the procedure was necessary
to save the woman's life. Following a bench trial, defendant,
a licensed physician, was convicted of violating the statute by
performing an abortion upon a pregnant minor in his unlicensed
clinic. The Virginia Supreme Court affirmed defendant's
conviction and defendant appealed to the Supreme Court.
In his appeal, defendant argued that the statute was
unconstitutionally applied 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," that he was not proved guilty beyond a reasonable doubt and
that Virginia could not require second trimester abortions to be
performed in a "licensed hospital."
Simopoulos, 462 U.S. at 510-11.
The Statute Under Review
The indictment charged defendant with a violation of § 18.2-71
of the Virginia Code which, at the time of the offense, provided 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 such child, or to
produce abortion or miscarriage, he shall be guilty of a Class 4
Va. Code § 18.2-71 (1982). Virginia law set forth four
exceptions to the scope of this statute: there was no criminal
liability if the abortion (I) was performed within the first
trimester, § 18.2-72; (ii) was performed in a licensed hospital in
the second trimester, § 18.2-73; (iii) was performed during the
third trimester under certain circumstances, § 18.2-74; or (iv) was
necessary to save the woman's life, § 18.2-74.1. In addition
to the criminal penalty provided, a physician who was found guilty
of violating § 18.2-71 was subject to a mandatory revocation of his
license to practice medicine. Va. Code §§ 54-316(3),
54-317(1), 54.321.2 (1982).
Section 18.2-71 itself did not define the term "hospital," but
another statute defined "hospital" to include "outpatient . . .
hospitals." Va. Code § 32.1-123.1. And an
administrative regulation defined "outpatient hospitals" in part as
"[i]nstitutions . . . which primarily provide facilities for the
performance of surgical procedures on outpatients," and provided
that second-trimester abortions could be performed in such
clinics. Dep't of Health Rules & Regulations for the
Licensure of Outpatient Hospitals in Virginia, § 20.2.11. The
regulations applicable to the performance of second-trimester
abortions in outpatient surgical hospitals largely followed the
regulations applicable to all outpatient surgical hospitals in
The Court's Holding
By a vote of eight-to-one, the Court upheld the defendant's
The Court's Reasoning
The Court quickly disposed of the defendants' first two
arguments. With respect to defendant's argument that the
State failed to allege the lack of medical necessity in the
indictment or to introduce evidence on that issue to the trier of
fact, the Court noted that, under Virginia law, the prosecution was
not required to prove lack of medical necessity beyond a reasonable
doubt unless and until the defendant invoked medical necessity as a
defense. Simopoulos, 462 U.S. at 510. Because
the defendant never raised medical necessity as a defense, the
State was under no obligation to present evidence rebutting that
defense. Under well-established Supreme Court precedent, it
is normally permissible to "plac[e] upon the defendant the burden
of going forward with evidence on an affirmative defense . . .
." Id. Accordingly, defendant's first argument
was rejected. With respect to his argument regarding the
sufficiency of the evidence, the Court found that the evidence
proved him guilty beyond a reasonable doubt. Id.
The Court then proceeded to the principal issue on appeal, the
constitutionality of the State's requirement that all
second-trimester abortions be performed in a licensed outpatient
Writing for the majority, Justice Powell reiterated that "a
State has an 'important and legitimate interest in the health of
the mother' that becomes 'compelling' . . . at approximately the
end of the first trimester.' " Simopoulos, 462 U.S. at
510-11 (quoting Roe v. Wade, 410 U.S. 113, 163
(1973)). "This interest," he continued, "embraces the
facilities and circumstances in which abortions are
performed." Id. at 511. The defendant argued
that Virginia's requirement that all second-trimester abortions be
performed in outpatient hospitals "imposes an unconstitutional
burden on the right of privacy." Id. (stating defendant's
argument). The Court recognized that, under two other cases
decided the same day as Simopoulos, the State may not
require all second-trimester abortions to be performed in an
"acute-care hospital . . . ." Id. (citing City of
Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 431-39 (1983), and Planned Parenthood Ass'n of
Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S.
476, 481-82 (1983)). The State of Virginia responded that its
hospitalization requirement differs from those struck down in
City of Akron and Ashcroft and that it reasonably
promotes the State's interests. Id. After reviewing the
applicable statutes and regulations, the Court agreed with the
State. "[T]he Virginia statutes and regulations do not
require that second-trimester abortions be performed exclusively in
full-service hospitals." Id. at 516. Under
Virginia's hospitalization requirement, "outpatient surgical
hospitals may qualify for licensing as 'hospitals' in which second
trimester-abortions lawfully may be performed." Id.
City of Akron and Ashcroft were not
In light of its interest in protecting the health of its
citizens, "the State necessarily has considerable discretion in
determining the standards for the licensing of medical
facilities." Simopoulos, 462 U.S. at 516.
"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 abortions
and setting forth the standards for facilities in which such
abortions are performed." Id. The Court observed
that, on their face, "the Virginia regulations appear to be
generally compatible with accepted medical standards governing
outpatient second-trimester abortions." Id. at 517
(citing standards promulgated by the American Public Health
Association and the American College of Obstetricians &
Gynecologists). Moreover, given the language of the
regulations and the history of their adoption, the Court had no
reason to doubt that "an adequately equipped clinic could, upon
proper application, obtain an outpatient hospital license
permitting the performance of second-trimester abortions."
Id. at 518-19.
The Court did not need to consider whether Virginia's
regulations were constitutional "in every respect," because the
defendant never challenged them as being "insufficiently related to
the State's interest in protecting health."
Simopoulos, 462 U.S. at 517. Rather, his challenge
appeared to have been limited to the claim that "the State
cannot require all second-trimester abortions to be performed in
full-service general hospitals." Id. at 518. Because
Virginia imposed no such requirement on second-trimester abortions,
defendant's argument was misdirected. 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." Id.
"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 Concurring And Dissenting Opinions
Justice O'Connor wrote an opinion, in which Justice White and
Justice Rehnquist joined, concurring in part and concurring in the
judgment. Justice O'Connor agreed that Virginia's
second-trimester outpatient hospitalization requirement was
constitutional, but, relying upon her dissent in the City of
Akron case decided the same day, stated that the validity of
that requirement was not in any way contingent "on the trimester in
which it is imposed." Simopoulos, 462 U.S. at 519-50
(O'Connor, J., concurring in part and concurring in the judgment).
Id. at 520. The requirement was constitutional
because it was not an "undue burden" on the woman's decision to
under an abortion." Id.
Justice Stevens dissented on the basis that there was some
question as to whether the challenged statute, properly
interpreted, "prohibit[ed] all second-trimester abortions except
those performed in a full-service, acute-care hospital facility,"
contrary to the holdings in City of Akron and
Ashcroft, or "permit[ted] any abortion performed in a
facility licensed as a 'hospital' in accord with any regulations .
. . adopted by the Department of Health."
Simopoulos, 462 U.S. at 520-21 (Stevens,
dissenting). In Justice Stevens' view, the proper disposition
of the case would have been to vacate the judgment of the Virginia
Supreme Court and remand the case to that court to determine the
proper interpretation of the statute and implementing
regulations. Id. at 521.
For an analysis of the constitutional issues decided in City
of Akron and Ashcroft, please see the fact sheets for