People v. Bricker, Docket No. 12114

CourtCourt of Appeal of Michigan (US)
Citation201 N.W.2d 647,42 Mich.App. 352
Docket NumberNo. 2,Docket No. 12114,2
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BRICKER, Defendant-Appellant
Decision Date23 August 1972

Page 647

201 N.W.2d 647
42 Mich.App. 352
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Samuel BRICKER, Defendant-Appellant.
Docket No. 12114.
Court of Appeals of Michigan, Division No. 2.
Aug. 23, 1972.
Released for Publication Oct. 31, 1972.

[42 Mich.App. 353]

Page 648

I. Goodman Cohen and Michael S. Friedman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and T. M. BURNS and VanVALKENBURG *, JJ.


The defendant was found [42 Mich.App. 354] guilty by a jury of conspiracy 1 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, M.C.L.A. § 750.14; M.S.A. § 28.204, is unconstitutional in that it deprives the woman upon which 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 M.C.L.A. § 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

[42 Mich.App. 355] 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 U.S. 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 M.C.L.A. § 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, Supra. 5

[42 Mich.App. 356]

Page 649

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.

One. 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.

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


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5 cases
  • People v. Higuera, Docket No. 213557.
    • United States
    • Court of Appeal of Michigan (US)
    • April 5, 2001
    ...of Roe v. Wade, infra, takes no note of the constitutional defect in the statute. [Bricker, supra at 527, 208 N.W.2d 172, quoting 42 Mich.App. 352, 356, 201 N.W.2d 647 10. The first case defendant cites, Guam Society of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (C.A.9, 1992), addr......
  • Doe v. Director of Dept. of Social Services, Docket No. 116069
    • United States
    • Court of Appeal of Michigan (US)
    • February 19, 1991
    ...rev'd on remand 50 Mich.App. 38, 212 N.W.2d 797 (1973), and the other involving an unlicensed abortion practitioner, People v. Bricker, 42 Mich.App. 352, 201 N.W.2d 647 (1972), aff'd 389 Mich. 524, 208 N.W.2d 172 (1973). After discussing the nature and history of the statute, the Court in N......
  • People v. Nixon, Docket No. 9579
    • United States
    • Court of Appeal of Michigan (US)
    • August 23, 1972
    ...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, 201 N.W.2d 647 (1972). While the last sentence of the statute impermissibly shifts the burden of proof, the record herein clearly indicates th......
  • People v. Nixon, Docket No. 9579
    • United States
    • Court of Appeal of Michigan (US)
    • September 27, 1973
    ...332, 201 N.W.2d 635 (1972). Thereafter the Supreme Court assumed jurisdiction over this case and the companion case People v. Bricker. 42 Mich.App. 352, 201 N.W.2d 647 (1972). On June 20, 1973 the Supreme Court, after having rendered a decision in Bricker, remanded this case to this Court '......
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