People v. Nixon

• Decision Date: 23 August 1972
• Docket Number: No. 3,Docket No. 9579,3
• Citation: 201 N.W.2d 635,42 Mich.App. 332
• 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 635

201 N.W.2d 635

42 Mich.App. 332

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.

Aug. 23, 1972.

Released for Publication Oct. 31, 1972.

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.

VanVALKENBURG, Judge.

Robert Nixon, 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. ¹ Defendant Nixon argues on appeal, as he did before the trial court, that the Michigan abortion statute is unconstitutional because it is vague in the constitutional sense, and because it places an undue restraint upon a physician in the discharge of his professional duties. Before we undertake to discuss the merits of these issues, we feel it is incumbent upon us to discuss the nature and intent of the Michigan statute.

A very brief history of the common-law position with regard to induced abortions is necessary in order to understand the nature and intent of the Michigan abortion statute. At common law an induced abortion ² of an unquickened ³ fetus did not constitute a crime. ⁴ Against this backdrop of the common law, the Michigan Legislature in 1846 enacted three provisions relating to the well-being of a pregnant woman and her unborn child. The first of these provisions provided that wilful killing of an unborn quick child by injury to the mother was manslaughter. ⁵ The second provided that anyone who administered any medicine or drug or used any instrument or other means upon a woman pregnant with a quick child, with the intent to destroy such child, unless the same was necessary to preserve the life of the mother, would be guilty of manslaughter if either the child or mother died. ⁶ The third provision, the precursor to the statute considered herein, provided that anyone who wilfully administered any drug or substance or used any instrument upon a pregnant woman with the intent to procure a miscarriage, unless the same was necessary to preserve the life of the mother, was guilty of a misdemeanor. ⁷

Authored as they were in 1846, and in light of the fact that the death of a quickened fetus by an induced abortion was deemed manslaughter whereas a mere abortion was a misdemeanor, it is immediately apparent that the Legislature intended to retain the common-law distinction between a quickened and unquickened fetus. Since the destruction of an unquickened fetus by means of an induced abortion was made a misdemeanor, but the destruction of a quickened fetus was manslaughter, it is apparent that the Legislature did not view the induced abortion of an unquickened fetus as being the destruction of a human life. In other words, the unquickened fetus was not considered to be a separate human being so as to make the destruction of such fetus a killing. ⁸ Viewed in this manner, one is forced to the conclusion that the so-called 'abortion' statute was not intended to protect the 'rights' of the unquickened fetus. ⁹

This thus brings us to the crucial question: If the purpose of the statute was not to protect the fetus, what then was its intended purpose? The obvious purpose was to protect the pregnant woman. When one remembers that the passing of the statute predated the advent of antiseptic surgery, the Legislature's wisdom in making criminal any invasion of the woman's person, save when necessary to preserve her life, is unchallengeable. The conclusion that the statute was aimed primarily at the problem of the health and safety of the woman is buttressed by the fact that the statute makes the mere attempt to artificially induce a miscarriage punishable, ¹⁰ and by the fact that if death of the woman resulted from such an attempt or completed act, such death was deemed to be manslaughter. While the 1931 revision ¹¹ of the statute to its present form made the crime a felony, made the death of the woman, if it resulted from an abortion, manslaughter ¹² and deleted the language regarding the advice of two doctors, we find nothing to indicate that the intent of the Legislature in 1931 was any different than that of the Legislature in 1846.

As noted above, when the precursor of M.C.L.A. § 750.14, Supra, was enacted there was a very legitimate and compelling state interest in making criminal all induced abortions or attempts thereof. Even the 1931 revision predates the existence of the multitude of broad-spectrum antibiotics which have substantially reduced the dangers arising from infections. We cannot be unmindful of the pronouncement of the Michigan Supreme Court in Womack v. Buchhorn, 384 Mich. 718, 720, 187 N.W.2d 218, 219 (1971), ¹³ wherein the Court stated:

'Since Newman has been decided, medical science has probably advanced more in one generation than in the previous one hundred years or more. Legal philosophy and precedent have moved in response to scientific and popular knowledge.' ¹⁴

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. While we have little difficulty in finding a sufficient state interest with regard to induced abortions performed by non-physicians, ¹⁵ the question of whether there is a sufficient state interest to justify continued application of the statute with regard to licensed physicians is somewhat more complex. As noted above, medical science has made tremendous strides in recent years. No longer is an induced abortion, when performed by a licensed physician in an antiseptic environment, a matter of so great a danger that it justifies a blanket denial of the right to secure such medical services. Not only has modern medical science made a therapeutic abortion reasonably safe, but it would now appear that it is safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child. ¹⁶

Faced with this evidence we are forced to conclude that the intended purpose of M.C.L.A. § 750.14, Supra, is no longer existent as it applies to licensed physicians in a proper medical setting. There is no longer a sufficient state interest to justify continued prosecution of licensed physicians for the mere act of artificially inducing a miscarriage of an unquickened fetus. What state interest there is in the continued protection of the woman is counterbalanced and offset by the superior right of the woman and her physician to undertake such medical treatment as is deemed appropriate. ¹⁷ The question of whether any given woman should be given a therapeutic abortion during the first trimester is a question which is properly addressed to the discretion of the physician in the exercise of his professional duties.

Not only has the present Michigan abortion statute become unproductive of the end for which it was originally intended, I.e., the health and safety of the woman, but it would appear that it has become counter-productive. Since In re Vickers' Petition, 371 Mich. 114, 123 N.W.2d 253 (1963), recognized that the woman could not be prosecuted under the present statute for either a self-induced abortion or as an aider and abettor in an abortion performed upon her, the law has, at least to some extent, indicated that the woman has a right to abort. To recognize the woman's right to abort and simultaneously deny her the right to seek proper medical aid, except where necessary to preserve her life, does not encourage and promote the health and safety of the woman; but rather, it encourages the woman to place herself in the hands of those not properly skilled. Such an anomaly is not only illogical, but also is fatal to the continued application of the statute. See Beecham v. Leahy, Vt., 287 A.2d 836 (1972).

While we do not believe that the intended aim of the statute is effectuated by the continued prosecution of licensed physicians who perform abortions in the first trimester of pregnancy in an antiseptic clinical environment, we do not intend to convey the impression that a license to practice medicine leaves a physician free to practice 'backroom butchery', any more than can his unlicensed counterpart. While a licensed physician may well be more skillful than one not trained in medicine, if the physician practices that skill in the septic environment of the backroom rather than in an antiseptic clinical environment, that physician, like his less skilled brother, will be amenable to prosecution under M.C.L.A. § 750.14, Supra.

Even though we hold that a licensed physician is not subject to prosecution for an induced abortion performed in a hospital or appropriate clinical setting upon a woman in her first trimester of pregnancy, our review of the record herein convinces us that defendant Nixon does not come within this exception. The testimony of the complainant indicates that Dr. Nixon performed the abortion on her with little or no consultation as to the state of her health, either mental or physical. The abortion was performed in defendant's office and was performed in a manner which, in the opinion of doctors who testified, was improper and conducive to inducing an infection. ¹⁸ Since defendant Nixon failed to comply with the standard of care expected of members of the medical profession, he may not use his professional status as a shield. Accordingly, he was properly charged, tried, and convicted of the felony of abortion contrary to M.C.L.A. § 750.14, Supra.

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 that ...