People v. Nixon

201 N.W.2d 635, 42 Mich. App. 332, 1972 Mich. App. LEXIS 939

• Court: Michigan Court of Appeals
• Decided: August 23, 1972
• Docket: Docket 9579
• Status: Published

Opinions

Van Valkenburg, J.

Robert Nixon, a licensed physician, was found guilty by a jury of the felony of abortion contrary to MCLA 750.14; MSA 28.204.¹ Defendant Nixon argues on appeal, as he did before the trial court, that the Michigan abortion statute is unconstitutional because it is vague in the constitutional sense, and because it places an undue restraint upon a physician in the discharge of his professional duties; Before we undertake to discuss the merits of these issues, we feel it is incumbent upon us to discuss the nature and intent of the Michigan statute.

A very brief history of the common-law position with regard to induced abortions is necessary in order to understand the nature and intent of the Michigan abortion statute. At common law an induced abortion² of an unquickened³ fetus did not constitute a crime.⁴ Against this backdrop of the common law, the Michigan Legislature in 1846 enacted three provisions relating to the well-being of a pregnant woman and her unborn child. The first of these provisions provided that wilful killing of an unborn quick child by injury to the mother was manslaughter.⁵ The second provided that anyone who administered any medicine or drug or used any instrument or other means upon a woman pregnant with a quick child, with the intent to destroy such child, unless the same was necessary to preserve the life of the mother, would be guilty of manslaughter if either the child or mother died.⁶ The third provision, the precursor to the statute considered herein, provided that anyone who wilfully administered any drug or substance or used any instrument upon a pregnant woman with the intent to procure a miscarriage, unless the same was necessary to preserve the life of the mother, was guilty of a misdemeanor.⁷

Authored as they were in 1846, and in light of the fact that the death of a quickened fetus by an induced abortion was deemed manslaughter whereas a mere abortion was a misdemeanor, it is immediately apparent that the Legislature intended to retain the common-law distinction between a quickened and unquickened fetus. Since the destruction of an unquickened fetus by means of an induced abortion was made a misdemeanor, but the destruction of a quickened fetus was manslaughter, it is apparent that the Legislature did not view the induced abortion of an unquickened fetus as being the destruction of a human life. In other words, the unquickened fetus was not considered to be a separate human being so as to make the destruction of such fetus a killing.⁸ Viewed in this manner, one is forced to the conclusion that the so-called "abortion” statute was not intended to protect the "rights” of the unquickened fetus.⁹

This thus brings us to the crucial question: If the purpose of the statute was not to protect the fetus, what then was its intended purpose? The obvious purpose was to protect the pregnant woman. When one remembers that the passing of the statute predated the advent of antiseptic surgery, the Legislature’s wisdom in making criminal any invasion of the woman’s person, save when necessary to preserve her life, is unchallengeable. The conclusion that the statute was aimed primarily at the problem of the health and safety of the woman is buttressed by the fact that the statute makes the mere attempt to artificially induce a miscarriage punishable,¹⁰ and by the fact that if death of the woman resulted from such an attempt or completed act, such death was deemed to be manslaughter. While the 1931 revision¹¹ of the statute to its present form made the crime a felony, made the death of the woman, if it resulted from an abortion, manslaughter¹² and deleted the language regarding the advice of two doctors, we find nothing to indicate that the intent of the Legislature in 1931 was any different than that of the Legislature in 1846.

As noted above, when the precursor of MCLA 750.14, supra, was enacted there was a very legitimate and compelling state interest in making criminal all induced abortions or attempts thereof. Even the 1931 revision predates the existence of the multitude of broad-spectrum antibiotics which have substantially reduced the dangers arising from infections. We cannot be unmindful of the pronouncement of the Michigan Supreme Court in Womack v Buchhorn, 384 Mich 718, 720 (1971),¹³ wherein the Court stated:

"Since Newman has been decided, medical science has probably advanced more in one generation than in the previous 100 years or more. Legal philosophy and precedent have moved in response to scientific and popular knowledge.”¹⁴

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. While we have little difficulty in finding a sufficient state interest with regard to induced abortions performed by non-physicians,¹⁵ the question of whether there is a sufficient state interest to justify continued application of the statute with regard to licensed physicians is somewhat more complex. As noted above, medical science has made tremendous strides in recent years. No longer is an induced abortion, when performed by a licensed physician in an antiseptic environment, a matter of so great a danger that it justifies a blanket denial of the right to secure such medical services. Not only has modern medical science made a therapeutic abortion reasonably safe, but it would now appear that it is safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child.¹⁶

Faced with this evidence we are forced to conclude that the intended purpose of MCLA 750.14, supra, is no longer existent as it applies to licensed physicians in a proper medical setting. There is no longer a sufficient state interest to justify continued prosecution of licensed physicians for the mere act of artificially inducing a miscarriage of an unquickened fetus. What state interest there is in the continued protection of the woman is counterbalanced and offset by the superior right of the woman and her physician to undertake such medical treatment as is deemed appropriate.¹⁷ The question of whether any given woman should be given a therapeutic abortion during the first trimester is a question which is properly addressed to the discretion of the physician in the exercise of his professional duties.

Not only has the present Michigan abortion statute become unproductive of the end for which it was originally intended, i.e., the health and safety of the woman, but it would appear that it has become counter-productive. Since In re Vickers, 371 Mich 114 (1963), recognized that the woman could not be prosecuted under the present statute for either a self-induced abortion or as an aider and abettor in an abortion performed upon her, the law has, at least to some extent, indicated that the woman has a right to abort. To recognize the woman’s right to abort and simultaneously deny her the right to seek proper medical aid, except where necessary to preserve her life, does not encourage and promote the health and safety of the woman; but rather, it encourages the woman to place herself in the hands of those not properly skilled. Such an anomaly is not only illogical, but also is fatal to the continued application of the statute. See Beecham v Leahy, 130 Vt 164; 287 A2d 836 (1972).

While we do not believe that the intended aim of the statute is effectuated by the continued prosecution of licensed physicians who perform abortions in the first trimester of pregnancy in an antiseptic clinical environment, we do not intend to convey the impression that a license to practice medicine leaves a physician free to practice "backroom butchery”, any more than can his unlicensed counterpart. While a licensed physician may well be more skillful than one not trained in medicine, if the physician practices that skill in the septic environment of the backroom rather than in an antiseptic clinical environment, that physician, like his less skilled brother, will be amenable to prosecution under MCLA 750.14, supra.

Even though we hold that a licensed physician is not subject to prosecution for an induced abortion performed in a hospital or appropriate clinical setting upon a woman in her first trimester of pregnancy, our review of the record herein convinces us that defendant Nixon does not come within this exception. The testimony of the complainant indicates that Dr. Nixon performed the abortion on her with little or no consultation as to the state of her health, either mental or physical. The abortion was performed in defendant’s office and was performed in a manner which, in the opinion of doctors who testified, was improper and conducive to inducing an infection.¹⁸ Since defendant Nixon failed to comply with the standard of care expected of members of the medical profession, he may not use his professional status as a shield. Accordingly, he was properly charged, tried, and convicted of the felony of abortion contrary to MCLA 750.14, supra.

Although not raised in this appeal, we feel it is incumbent to mention the burden of proof problem discussed in People v Bricker, 42 Mich App 352 (1972). While the last sentence of the statute impermissibly shifts the burden of proof, the record herein clearly indicates that complainant was in good health at the time she secured the abortion, and secured the abortion only because she was unmarried and unwilling to get married or have the child out of wedlock. The prosecution thus carried its burden of proof.

So that there will be no mistake as to the intent and scope of this opinion, let us briefly delineate the scope of our holding.

1. The statute is not vague in the constitutional sense. See People v Bricker, supra.

2. In Ariew of the current state of medical knowledge and in light of the fact the Michigan "abortion” statute creates an anomalous result by permitting the woman to abort but denying her the opportunity to secure proper medical care, the intended purpose of the statute is no longer served by continued application of the statute to therapeutic abortions performed in the first trimester of pregnancy by a licensed physician in a hospital environment.¹⁹ We therefore hold that a licensed physician who performs a therapeutic abortion upon a woman who is in her first trimester of pregnancy, if such operation takes place in a hospital, is not subject to prosecution under MCLA 750.14, supra.20

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

Because we find that it was not the intention of the Legislature in enacting the precursor to MCLA 750.14, supra, thereby to protect the continued existence of an unquickened fetus or thereby to give the unquickened fetus any "right” to continued existence, we need not, and most emphatically do not, express any opinion as to whether the woman’s "right of privacy” precludes any state action with regard to abortion if the Legislature chooses to recognize the unquickened fetus as a new and separate human being.

For the reasons stated herein, defendant’s conviction is affirmed.

Danhof, P. J., concurred.

1 MCLA 750.14; MSA 28.204 provides:

"Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

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

2 The term "abortion” by itself does not connote that the expulsion of the fetus is either the product of a criminal act or that it was induced by an artificial means. At least for the purposes of a legal discussion the terms "abortion” and "miscarriage” may be considered synonymous. See Gilchrist v Mystic Workers of the World, 196 Mich 247 (1917).

3 The terms "quickened” and "unquickened” relate to the temporal relationship with regards to intrauteral development of the fetus. Quickening is that point when the fetus indicates signs of life by way of fetal movements which can be felt by the mother. These movements are usually first noted in the fourth or fifth month of pregnancy. Stedman, Medical Dictionary (21st ed), p 1340.

4 See Sikora, Abortion: An Environmental Convenience or a Constitutional Bight, 1 Environmental Affairs 469, 473 and the authorities cited in footnote 35 of said article. See, also, People v Belous, 71 Cal 2d 954, 961; 80 Cal Rptr 354, 358; 458 P2d 194,198 (1969).

5 1846 RS, ch 153, § 32, which provided:

"The wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.”

See, also, MCLA 750.322; MSA 28.554.

6 1846 RS, ch 153, § 33, which provided:

"Every person who shall administer to any woman pregnant with a quick child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother', or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter.”

See, also, MCLA 750.323; MSA 28.555.

7 1846 RS, chap 153, § 34, which provided:

"Every person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent to procure the miscarriage of such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

See, also, MCLA 750.14, supra, as quoted in footnote 1.

8 The Court in People v Olmstead, 30 Mich 431, 433 (1874), in commenting about the distinction between § 33 (as set forth in footnote 7) and § 34 (as set forth in footnote 8), stated:

"The distinction, therefore, is clearly taken, as depending on the intent to destroy a living unborn child, and supplies a defect at the common law, whereby such attempts were not felonious, and in some cases, at least, may not have been punishable at all.

"The elements of the crime, as applied to the case before us, are found in the death of the mother, produced by acts intended to destroy a quick child; that term being used in the statute as an unborn child liable to be killed by violence. The ambiguity which, according to Mr. Bishop, seems to exist in some statutes, as to the foetal condition, is not found in our statutes, which cover the whole ground by different provisions: Comp. L., §§ 7541, 7542, 7543; Bishop on Statutory Crimes, §§ 742-750, and cases. ”

9 The woman cannot be prosecuted under MCLA 750.14, supra, for a self-induced abortion. See In re Vickers, 371 Mich 114 (1963). Since the woman cannot be prosecuted under that statute, it must be assumed that the harm the statute was attempting to punish ran only to the woman and not to the fetus. If the statute were intended to protect the continued existence of the fetus, then there would be no reason for exempting the woman from prosecution.

10 The Court in People r Olmstead, supra, 432, held that the precursor to MCLA 750.14 supra, "makes all unnecessary attempts to produce the miscarriage of a pregnant woman, whatever may be the result, punishable as a misdemeanor”.

11 1931 PA 328, § 14.

12 The manslaughter provision in the 1931 revision was merely a codification of the long-standing rule that when death of the woman resulted from the illegal induced abortion or attempt thereof, the person performing the act was guilty of manslaughter. See, People v Abbot, 116 Mich 263 (1898); People v Stahl, 234 Mich 569 (1926).

13 The Womack decision is sometimes mistakenly cited for the proposition that the Court recognized the unborn child’s "right to live”. This is not the case, for as the Court clearly stated: "The only issue in this case is whether a common-law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy.” (Emphasis supplied.) Womack, supra, 719-720. Thus the Womack decision would appear to be limited to those cases where there is a live birth. If there is a live birth, then an action may be brought in the name of the child for prenatal injuries.

14 The case referred to by the Court is Newman v Detroit, 281 Mich 60 (1937).

15 See People v Bricker, 42 Mich App 352 (1972).

16 See People v Belous, 71 Cal 2d 954, 965; 80 Cal Rptr 354, 360-361; 458 P2d 194, 200-201 (1969), and the authorities cited in footnote 7 of that opinion.

17 There can be no question as to the right of the woman to possess and control her body as she sees fit, in the absence of an expressed compelling state interest, for as the Court stated in Union Pacific R Co v Botsford, 141 US 250, 251; 11 S Ct 1000, 1001; 35 L Ed 734, 737 (1891):

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

See, also, Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The Court in Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965) recognized this right of personal privacy to be constitutionally protected, and, as such, one which could not be encroached upon to any significant extent in the absence of some compelling state interest.

Since the intended state interest sought to be protected by the Michigan "abortion” statute was that of the protection of the woman’s health and safety, and in light of the fact that such interest is no longer promoted with regard to therapeutic abortion by a licensed physician, there is no longer a sufficient compelling state interest in the continued application of the statute to licensed physicians to justify infringement upon the woman’s protected right to personal control of her person. See, also, Babbitz v McCann, 310 F Supp 293, 298-302 (ED Wis, 1970).

18 Defendant Nixon took the stand in his own defense. Defendant denied performing the abortion and asserted that he only treated complainant for a vaginal discharge. It is interesting to note that defendant indicated that the technique, which complainant asserted was used by defendant, was not a proper and safe way to induce an abortion. Thus, by defendant’s own words, if an abortion was performed upon complainant in the manner she described, it was not in conformance with the requisite professional standard of care.

19 We limit the inapplicability of the statute to those therapeutic abortions performed during the first trimester and in a hospital because the data before us as to the relative safety of such an operation refer to that time period and set of circumstances. We believe that any additional determination of the relative safety of therapeutic abortions between the end of the first trimester and the point of quickening is best left to the legislative branch of government, or, in the absence of such a determination, should be determined on the facts of the individual case. In other words, until and unless the legislative branch speaks, if a licensed physician, who performs a therapeutic abortion in a licensed hospital upon a woman who is beyond her first trimester of pregnancy but before the fetus has quickened, can show that said operation involved no significant increase in danger over an operation performed during the first trimester, he too would not be subject to the application of the statute. By the same token, if the abortion is performed in a clinical setting which provided the same standard of care as a hospital and involved no significant increase in danger over a hospital operation, the doctor performing the abortion would not be subject to the statute.

20 Since a physician who performs an abortion in accordance with this opinion is not criminally liable for such action, it also follows that he will not be subject to prosecution for manslaughter under this statute. This is not to say that a physician who is grossly negligent in performing such an operation cannot be prosecuted for manslaughter (just as he might if he negligently caused the death of any patient); however, a physician who undertakes to perform a therapeutic abortion should not be held to be liable to criminal prosecution for the death of a patient which was not the result of negligent care. To place absolute criminal liability upon a physician for the death of his patient would be so inhibitory as to countervail the basic expectations of society as to the nature and duties of the physician.

This is not to be construed to mean that the license to practice medicine is an absolute bar to prosecution. When a physician, like defendant herein, undertakes to perform an abortion in a manner so repugnant to the very standard of professional care he is bound to uphold, the intended purpose of the statute of protecting the health of the woman is thereby invoked and the physician may be properly prosecuted under MCLA 750.14, supra.