Larkin v. Cahalan
| Decision Date | 18 June 1973 |
| Docket Number | Nos. 2,3,s. 2 |
| Citation | 208 N.W.2d 176,389 Mich. 533 |
| Parties | Duane R. LARKIN, M.D. Plaintiff-Appellee, v. William CAHALAN, Prosecuting Attorney, Wayne County, Michigan; Frank J. Kelley, Attorney General, State of Michigan, in their official capacities, Defendants-Appellants. Lorraine B. BEEBE et al., Individually and on behalf of all others, similarly situated, a class action, Plaintiffs-Appellees, v. William CAHALAN, Prosecuting Attorney, Wayne County, Michigan, Frank J. Kelley, Attorney General, State of Michigan, in their official capacities, Defendants-Appellants. |
| Court | Michigan Supreme Court |
Barbara G. Robb, Anna J. Diggs, Claudia Morcom, Judith Munger, Marijana Relich, Sally Staebler, Detroit, for plaintiffs-appellees.
William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Div., W. Leo Cahalan, Chief, Civil Div., Patricia Boyle, Rheo C. Marchand, Asst. Pros. Attys., Detroit, for defendants-appellants.
Arthur F. Barkey, Southfield, for intervenors guardians ad litem.
Before the Entire Bench.
The purpose of this opinion is to determine the impact of Roe v. Wade, 410 U.S.
113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) upon various criminal and regulatory statutes in Michigan.
The two cases before us are actions for declaratory and injunctive relief commenced in the Circuit Court for Wayne County. The circuit judge granted the relief sought in both cases, and we granted leave Sua sponte, staying the order of the circuit court on October 19, 1972. In the interim, and prior to submission in this court, the Wade and Bolton cases were decided by the United States Supreme Court.
At issue here are four substantive criminal statutes and one regulatory act. They will be dealt with separately.
--CRIMINAL MISCARRIAGE
M.C.L.A. § 750.14; M.S.A. § 28.204, provides as follows:
'750.14 Miscarriage, administering with intent to procure
'In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.'
The constitutionality of this section is discussed and decided in People v. Bricker Mich., 208 N.W.2d 172, decided this day.
--ADVERTISING OR SALE OF ABORTIFACIENTS
M.C.L.A. § 750.15; M.S.A. § 28.205, provides:
'750.15 Abortion, drugs or medicine, advertising or sale to procure
'Any drug or medicine known to be designed and expressly prepared for producing an abortion, shall only be sold upon the written prescription of an established practicing physician of the city, village, or township in which the sale is made; and the druggist or dealer selling the same shall, in a book provided for that purpose, register the name of the purchaser, the date of the sale, the kind and quantity of the medicine sold, and the name and residence of the physician prescribing the same.'
Unlike the criminal miscarriage law, the statute prohibiting advertising and sale of abortifacients excepts from its provisions the written prescription of an established practicing physician of the place where the sale is made.
Whether the limitation as to the place of the physician's practice is unduly restrictive, so as to constitute an arbitrary, unreasonable and invalid exercise of the police power is not now before us. For the purpose of this opinion, it is sufficient to conclude that Roe v. Wade does not address itself to the power of the state to Roe v. Wade repeatedly asserts that the abortion decision is a medical decision, to be made by a physician in consultation with his patient. M.C.L.A. § 750.15; M.S.A. § 28.205, merely effectuates that policy. It is constitutional.
regulate the advertising and sale of abortifacients. Indeed, M.C.L.A. § 750.15; M.S.A. § 28.205, would appear to be entirely consistent with the rationale of Roe v. Wade. It makes the sale of drugs or medicines designed to produce abortion a medical rather than a commercial activity.
--ASSAULTIVE ABORTION
M.C.L.A. § 750.322; M.S.A. § 28.554, provides as follows:
'750.322 Same; wilful killing of unborn quick child
This is a very narrow statute which is related only peripherally to the issues decided in Roe v. Wade and Doe v. Bolton.
An injury to the mother which would be murder if resulting in the death of the mother is necessarily an injury caused by a felonious assault. We hold that M.C.L.A. § 750.322; M.S.A. § 25.554, is limited in its scope to abortions caused by felonious assault upon the mother, which result in the death of an unborn quick child En ventre sa mere. 'Quick child' will be defined in the next section of this opinion. So limited, the act does not offend the Due Process Clause of the Fourteenth Amendment.
--MANSLAUGHTER BY ABORTION
M.C.L.A. § 750.323; M.S.A. § 28.555, states:
'750.323 Same; death of quick child or mother from use of medicine or instrument
'In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.'
This statute, like M.C.L.A. § 750.322; M.S.A. § 28.544, uses the term 'quick child.' It also uses the terms 'death' and 'mother.' Both statutes are found in the Penal Code under the designation of Homicide. In both instances, the crime is defined as manslaughter. Manslaughter is a form of homicide.
It is a serious crime both at common law and under our statutes because manslaughter involves the destruction of viable human life.
There can be no manslaughter of an inanimate object. Neither can manslaughter be predicated upon the destruction of any form of animal life which is not human.
It follows that statutes proscribing manslaughter by abortion are designed to protect human life and carry the necessary implication that that life, the destruction of which is punishable as manslaughter, is human life.
Neither M.C.L.A. § 750.323, M.S.A. § 28.555, nor M.C.L.A. § 750.322; M.S.A. § 28.554, attempts to define precisely when human life begins.
Both are predicated upon the existence of human life, in the womb of the mother, as a matter of biological fact. We do not understand the use of the phrase 'quick child' as a legislative attempt to define a point in time when human life begins.
Roe v. Wade defines 'quickening' as 'the first recognizable movement of the fetus In utero, appearing usually from the 16th to 18th week of pregnancy.' This would place the phenomenon of quickening sometime after the first trimester.
But quickening is only evidence of life. It is not conclusive. It is now known that a fetus is capable of movement long before that movement is felt by the mother. Quickening is nothing more than discernable movement.
The use of the adjective 'quick' to modify the noun 'child,' describes but does not define the subject of the offense of manslaughter.
Thus, not every child in its mother's womb is protected by the act; only a Quick child, a child causing discernable movement.
But not every fetus discernably moving In utero is protected by the act, for it punishes only the killing of a quick Child. By use of the word child, the Legislature has made clear that the offense consists of destroying a human life.
In Roe v. Wade, the United States Supreme Court has held that the state has a compelling interest in the protection of human life from and after the point of viability:
Our duty is to read the Michigan act to be consistent with the Federal Constitution, if such interpretation can be made without doing violence to the language used by the Legislature.
We hold that the word child as used in M.C.L.A. § 750.322; M.S.A. § 28.544, and M.C.L.A. § 750.323; M.S.A. § 28.555, means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically...
To continue reading
Request your trial
-
People v. Higuera
...v. Bolton, supra, criminal responsibility attaches. [Bricker, supra at 529-531, 208 N.W.2d 172.] See also Larkin v. Cahalan Prosecutor, 389 Mich. 533, 537, 208 N.W.2d 176 (1973), in which the Court stated that the constitutionality of M.C.L. § 750.14; MSA 28.204 "is discussed and decided in......
-
State v. Norflett
...other doctors, and finally that the woman desiring the abortion be a bona fide resident of the state.11 See also Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176, 178 (1973), where the Michigan statutory framework is set out in detail.12 See also Jackson, supra, 312 A.2d 13, 14 (Roberts, J.......
-
Doe v. Director of Dept. of Social Services
...506] involved, the Court agreed with central points on which the Court of Appeals had based its decision. In Larkin v. Wayne Prosecutor, 389 Mich. 533, 208 N.W.2d 176 (1973), decided on the same day as Bricker, our Supreme Court recognized the state's interest in protecting the life of an u......
-
Toth v. Goree
...turned to that case for support. The Michigan Supreme Court has given Roe a more restrictive reading. In Larkin v. Wayne Prosecutor, 389 Mich. 533, 208 N.W.2d 176 (1973), one of the issues presented was whether Roe rendered M.C.L.A. 750.322; M.S.A. 28.554, assaultive abortion, invalid. The ......