People v. Nixon, Docket No. 9579

• Decision Date: 27 September 1973
• Docket Number: Docket No. 9579,No. 3,3
• Citation: 212 N.W.2d 797,50 Mich.App. 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Stanley NIXON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 797

212 N.W.2d 797

50 Mich.App. 38

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Stanley NIXON, Defendant-Appellant.

Docket No. 9579.

Court of Appeals of Michigan, Division No. 3.

Sept. 27, 1973.

Released for Publication Dec. 19, 1973.

James G. Orford, Bay City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

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

On Remand

PER CURIAM.

Defendant, a licensed physician, was found guilty by a jury of the felony of abortion contrary to M.C.L.A. § 750.14; M.S.A. § 28.204. Defendant appealed to this Court and his conviction was affirmed. See 42 Mich.App. 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 'for disposition not inconsistent with the dispositions ordered by this Court (the Supreme Court) in Larkin v. Wayne Prosecutor (Beebe v. Wayne Prosecutor), 389 Mich. 533, 208 N.W.2d 176 (6--18--73) and People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (6--18--73)'. 389 Mich. 809, 810.

The Court in People v. Bricker, 389 Mich. 524, 527, 529--530, 208 N.W.2d 172, 174, 175 (1973), held:

'Under the Supremacy Clause we are bound by the decisions of the United States Supreme Court in 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.'

'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 (Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)), 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 review of the lower court record reveals that defendant performed the abortion within the first trimester of pregnancy. On the...