People v. Bricker, 1
| Decision Date | 18 June 1973 |
| Docket Number | No. 1,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BRICKER, Defendant-Appellant. |
| Court | Michigan Supreme Court |
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.
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 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 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 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 situation not in contemplation when the Legislature acted. 4
When the Legislature adopted the statutes prohibiting most abortions there was little or no reason to question their constitutionality. The medical and other developments which influenced the United States Supreme Court to decide Roe and Doe as it did were far ahead.
Now that the United States Supreme Court has spoken concerning the constitutionality of state abortion laws, we seek to save what we can of the Michigan statutes.
The central purpose of this legislation is clear enough--to prohibit all abortions except those required to preserve the health of the mother. The Supreme Court now requires other exceptions. They can properly be read into the statutes to preserve their constitutionality.
The public policy of this state is a mandate upon us. Our duty to enforce that mandate is as clear as if our duty to comply with decisions of the United States Supreme Court construing the federal constitution.
The public policy of this state is to be found in the declarations and deeds of its people. These find concrete expression in the Constitution adopted by the people, the laws enacted by the Legislature, the acts of the Governor, the Attorney General, others exercising executive power, the decisions of our courts, and the vote of the people. Proponents of abortion reform took a case to the people last November and lost.
It is the public policy of the state to proscribe abortion. This public policy must now be subordinated to federal constitutional requirements.
In light of the declared public policy of this state and the changed circumstances resulting from the federal constitutional doctrine elucidated in Roe and Doe, we construe § 14 of the penal code to mean that the prohibition of this section shall not apply to 'miscarriages' authorized by a pregnant woman's attending physician in the exercise of his medical judgment; the effectuation of the decision to abort is also left to the physician's judgment; however, a physician may not cause a miscarriage after viability except where necessary, in his medical judgment to preserve the life or health of the mother.
Our reasoning and result is neither novel nor unprecedented. Our eminent Mr. Justice Cooley, in his work on Constitutional Limitations, addressed the effect of judicial ruling holding a statute unconstitutional in part and concludes at pp. 215--216 (5th ed.):
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