People v. Bricker, 1

• Court: Supreme Court of Michigan
• Citation: 389 Mich. 524,208 N.W.2d 172
• Docket Number: No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BRICKER, Defendant-Appellant.
• Decision Date: 18 June 1973

Page 172

208 N.W.2d 172 389 Mich. 524 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Samuel BRICKER, Defendant-Appellant. No. 1. Supreme Court of Michigan. June 18, 1973.

[389 Mich. 526]

Page 173

L. Brooks Patterson, Pros. Atty., Oakland, County, by Frank R. Knox, Chief Appellate Counsel, Birmingham, for plaintiff-appellee.

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

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

Defendant, charged with conspiracy ¹ to commit an abortion, ² was convicted upon a jury verdict and sentenced to one to four years in prison. The Court of Appeals affirmed, 42 Mich.App. 352, 201 N.W.2d 647. We granted leave to appeal, 388 Mich. 788 (1972).

Complainant, Tabalea Drader, testified that some time in September of 1967 she was contacted and solicited for an abortion. On October 2, 1967, a [389 Mich. 527] policewoman, in the place of Mrs. Drader, was taken to defendant Bricker's apartment, where defendant met her and explained the procedures to be followed. Before anything could be done, officers entered and arrested defendant.

The Court of Appeals, noting defendant is not a physician, concluded that as to non-physicians, 'there is sufficient State interest in both the protection of the health

Page 174

and safety of a pregnant woman and the protection of 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.'

Unfortunately, this conclusion, though embodying the spirit of the doctrine of Roe v. Wade, Infra, takes no note of the constitutional defect in the statute.

Under the Supremacy Clause we are bound by the decisions of the United States Supreme Court n Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and other cases. Under the principles enunciated therein, our criminal abortion statute (M.C.L.A. § 750.14; M.S.A. § 28.204) cannot stand as relating to abortions in the first trimester of a pregnancy as authorized by the pregnant woman's attending physician in exercise of his medical judgment. Because Tabalea Drader was well within the initial trimester deadline on October 2, 1967, ³ no abortion performed upon her at that time by a licensed physician would have been criminal.

That is not the case before us. Defendant is not and was not a licensed physician. Thus, the privotal question is whether our penal code provisions proscribe defendant's conduct, notwithstanding the [389 Mich. 528] constitutionally engrafted exemption dictated by Roe v. Wade, Supra.

We must recognize at the outset that the judicial opinions filed by the United States Supreme Court in Roe and Doe are binding upon us under the Supremacy Clause. Those opinions do not, however, Decide any case other than the cases of Roe and Doe. This is decisionally important in this case because Roe and Doe do not purport to construe the Michigan abortion statutes. They proceed to decision upon a construction of the Texas (Roe) and Georgia (Doe) statutes.

We are duty bound under the Michigan Constitution to preserve the laws of this State and to that end to construe them if we can so that they conform to federal and state constitutional requirements. The United States Supreme Court would be the first to acknowledge that our construction of our statutes in a manner which does not offend the federal constitutional right recognized in Roe and Doe is determinative until changed by the Michigan Legislature or the initiative of the people of this State.

Nor are we obliged to adhere to earlier constructions by this Court of our statutes or by other courts of their similar statutes.

It is often said that in construing a statute a court seeks to determine the intent of the Legislature. Frequently there is truthfully no intent because the question concerns a...