Kudish v. Board of Registration in Medicine

• Decision Date: 02 June 1969
• Citation: 356 Mass. 98,248 N.E.2d 264
• Parties: Benedict KUDISH v. BOARD OF REGISTRATION IN MEDICINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 264

248 N.E.2d 264

356 Mass. 98

Benedict KUDISH v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 9, 1969.

Decided June 2, 1969.

Henry H. Silverman, Boston, for petitioner.

Edward W. Hanley, III, Asst. Atty. Gen., for respondent.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

This petition is to review a decision of the respondent board of registration in medicine which revoked the petitioner's registration as a physician. In the Superior Court a final decree affirmed the board's decision. The petitioner appealed.

At the hearing before the board there was evidence (1) that the petitioner had pleaded guilty in the Superior Court to two counts in the form provided in G.L. c. 277, § 79, charging him with performing an abortion (G.L. c. 272, § 19) ¹, and (2) that he was placed on probation for three years. No objection was made to the admissibility of this evidence.

The petitioner, after his admission of violation of § 19, made no effort to present facts which might avoid his being adjudged 'guilty of deceit, malpractice, gross misconduct in the practise of his profession, or of any offence against the laws of the commonwealth relating thereto,' all of which are grounds for revocation of his license. G.L. c. 112, § 61 (as amended through St.1963, c. 241, §§ 2, 3). The petitioner instead chose to rest his case upon the chance of successfully challenging the validity of § 19.

Before us the petitioner argues that the use of the word 'unlawfully' renders § 19 unconstitutionally vague, because there is no definition of what is unlawful. He cites no authority which supports this contention. The broad contention that the statute is void for vagueness lacks support in the authorities. See, for example, Commonwealth v. Daniel O'Connell's Sons, Inc., 281 Mass. 402, 183 N.E. 839; Commonwealth v. Carpenter, 325 Mass. 519, 91 N.E.2d 666; Alegata v. Commonwealth, 353 Mass. 287 231 N.E.2d 201; Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L,Ed. 322; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Note, Due Process Requirements of Definiteness in Statutes, 62 Harv.L.Rev. 77; Comment, Legislation--Requirement of Definiteness in Statutory Standards, 53 Mich.L.Rev. 264; Collings, Unconstitutional Uncertainty--An Appraisal, 40 Cornell L.Q. 195; Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67.

We are of opinion that any uncertainty has been made sufficiently definite by decisions of this court. In our cases it has been stated over the years that a physician may lawfully perform an abortion if he acts in good faith and in an honest belief that it is necessary for the preservation of the life or health of the woman. Commonwealth v. Sholes, 13 Allen, 554, 558; Commonwealth v. Brown, 121 Mass. 69, 76--77, 82; Commonwealth v. Nason, 252 Mass. 545, 551, 148 N.E. 110; Commonwealth v. Corbett, 307 Mass. 7, 12, 29 N.E.2d 151; Commonwealth v. Wheeler, 315 Mass. 394, 395, 53 N.E.2d 4; Commonwealth v. Brunelle, 341 Mass. 675, 677--678, 171 N.E.2d 850.

As another indication of vagueness as well as a violation of the due process and the equal protection clauses, the petitioner refers to the requirement introduced in Commonwealth v. Nason, supra, that the doctor's judgment correspond 'with the average judgment of the doctors in the community in which he practises.' Commonwealth v. Wheeler, supra; Commonwealth v. Brunelle, supra. Compare Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793. The petitioner has demonstrated neither the existence of any peril to the woman not his good faith in performing the abortion, both of which are fundamental to exoneration. Commonwealth v. Brown, supra; Commonwealth v. Wheeler, supra,...