People v. Bricker

201 N.W.2d 647, 42 Mich. App. 352, 1972 Mich. App. LEXIS 940

• Court: Michigan Court of Appeals
• Decided: August 23, 1972
• Docket: Docket 12114
• Status: Published

Opinions

Van Valkenburg, J.

The defendant was found guilty by a jury of conspiracy¹ to commit an abortion.² He filed a motion for a new trial, which was denied, and thereafter brought this appeal.

Defendant claims that the Michigan abortion statute, MCLA 750.14; MSA 28.204, is unconstitutional in that it deprives the woman upon whom the abortion is performed of certain constitutionally guaranteed rights, and that the statute is vague in the constitutional sense. Further, defendant argues that the language in the statute which relieves from the prosecution the burden to prove that the operation was not necessary for the preservation of the woman’s life thereby impermissibly shifts the burden of proof to the defendant.

At the outset we must note that defendant is not, and was not, a licensed physician. The question thus confronting us is whether there is a sufficient state interest with regard to the health and safety of the woman to continue to justify application of the present Michigan abortion statute as applied to induced abortions performed by non-physicians. We have little difficulty in holding that there still remains a sufficient state interest to justify a criminal abortion statute as it applies to non-physicians. There can be little doubt that the state’s interest in making medical care by an unlicensed person a criminal act is sufficient to overcome any assertion that the woman has the "right” to seek such medical care (if "medical care” is the appropriate term for the type of unskilled butchery so often practiced by these persons) from anyone she so desires. We therefore hold that MCLA 750.14, supra, is a valid exercise of the state’s power insofar as it applies to persons not licensed to practice medicine in this state.³

The assertion that the statute is vague in the constitutional sense is without merit. The United States Supreme Court held that the similarly worded District of Columbia statute was not vague. United States v Vuitch, 402 US 62; 91 S Ct 1294; 28 L Ed 2d 601 (1971).

We must also address ourselves to the question raised by the defendant Bricker with regard to the burden of proof problem. At issue is whether MCLA 750.14, supra, improperly shifts the burden of proof to the defendant by the language which provides:

"In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.” ⁴

Clearly this language does shift the burden of proof as to the necessity of the abortion to the defendant. It is equally clear that such a shifting of the burden of proof is constitutionally impermissible. United States v Vuitch, supra5

While the statute attempts impermissibly to shift the burden of proof, it is of no avail to defendant Bricker. Our review of the record discloses that the prosecution did carry its burden of proof with regard to the lack of necessity.⁶ Since defendant Bricker’s other assignments of error are without merit, we affirm his conviction.

So that there will be no question as to the scope of the holding of this case, let us briefly delineate the scope of this opinion.

1. There is a sufficient state interest in both the protection of the health and safety of a pregnant woman and the protection of the society as a whole from the practice of medicine by persons not licensed as physicians to justify continued application of the abortion statute to those abortions performed by non-physicians.

2. The statute is not vague in the constitutional sense.

3. The last sentence of the statute is clearly unconstitutional in that it impermissibly shifts the burden of proof to the defendant. Said language is void and of no effect, and the prosecution must prove the lack of necessity in every abortion prosecution.

Affirmed.

Danhof, P. J., concurred.

1 MCLA 750.157a; MSA 28.354(1)

2 MCLA 750.14; MSA 28.204

3 At least one court has held that a non-physician does not even have standing to assert the rights of either the woman or a physician. See Lashley v State, 10 Md App 136; 268 A2d 502 (1970).

4 Apparently Michigan is the only state to have such a statutory provision in its abortion statute. See the committee comment to the Michigan Revised Criminal Code, § 7015 (final draft, 1967).

5 The Court stated:

"Certainly a statute that outlawed only a limited category of abortions but 'presumed’ guilt whenever the mere fact of abortion was established, would at the very least present serious constitutional problems under this Court’s previous decision interpreting the Fifth Amendment. Tot v United States, 319 US 463 [63 S Ct 1241; 87 L Ed 1519 (1943)]; Leary v United States, 395 US 6, 36 [89 S a 1532, 1548; 23 L Ed 2d 57, 82 (1969)].

"It would be highly anomalous for a legislature to authorize abortions necessary for life or health and then to demand that a doctor, upon pain of one to ten years’ imprisonment, bear the burden of proving that an abortion he performed fell within that category. Placing such a burden of proof on a doctor would be peculiarly inconsistent with society’s notions of the responsibilities of the medical profession. Generally, doctors are encouraged by society’s expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. We are unable to believe that Congress intended that a physician be required to prove his innocence.” United States v Vuitch, 402 US at 70-71; 91 S a at 1298-1299; 28 L Ed 2d at 608-609. We hold that the clear thrust of the Vuitch language clearly controls, notwithstanding the possible contrary conclusion which might be drawn from People v Southwick, 272 Mich 258 (1935).

6 The record shows that the woman upon whom defendant was going to commit the abortion gave birth to a healthy, full-term baby. There could- be no more conclusive proof that the abortion was not necessary to preserve the woman’s life.