People v. Bricker, Docket No. 12114
| Decision Date | 23 August 1972 |
| Docket Number | No. 2,Docket No. 12114,2 |
| Citation | 201 N.W.2d 647,42 Mich.App. 352 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BRICKER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
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 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
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 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.
Three. 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.
I concur in the majority's affirmance of defendant's conviction of the crime of abortion. I also concur in the majority holding that there still remains a sufficient state interest to justify the existence of a criminal abortion statute as it applies to non-physicians.
However, I cannot agree that there was any need or compelling reason in this case for reaching the constitutional question to which the majority has gratuitously held that the language of the abortion statute results in an unconstitutional shifting of the burden of proof.
An appellate court will not decide constitutional questions unless such determination is necessary for adjudication and essential to the complete disposition of the case under consideration. Stanek v. Secretary of State, 33 Mich.App. 527, 190 N.W.2d 288 (1971); Warren Twp. v. Raymond, 291 Mich. 426, 289 N.W. 201 (1939).
In the case at bar, no such determination is necessary. The statute provides that abortion shall be a felony 'unless the same shall have been necessary to preserve the life of such woman'. It further provides that 'In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.'
I cannot believe that it was the legislative intent to permit a person not licensed to practice medicine and surgery to justify an illegal abortion by resort to a defense of necessity. It appears clear that the defense of necessity is available only to physicians and that under no circumstances is such defense available to a layman. A failure by the prosecution to prove lack of necessity would have availed defendant nothing in this case. Furthermore, the affirmative proof by the layman defendant that the abortion was necessary to save the life of the pregnant woman could not have barred conviction.
Therefore, any question as to the shifting of the burden of proof of necessity is of no consequence in this case.
The majority's reliance on United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), is misplaced inasmuch as defendant in that case was a licensed physician.
The foregoing being evident, I am convinced that the majority's holding of unconstitutionality is unnecessary, unwarranted and erroneous. This being true, their holding that M.C.L.A. § 750.14 unconstitutionally shifts the burden of proof constitutes nothing more than Obiter ditum.
Furthermore, it appears, at least superficially, that...
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