People v. Norton

• Decision Date: 05 March 1973
• Docket Number: Nos. 25576,25400 and 24972,s. 25576
• Citation: People v. Norton, 507 P.2d 862, 181 Colo. 47 (Colo. 1973)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John B. NORTON, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawson Francis PALMER, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thor JORGENSEN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 862

507 P.2d 862

181 Colo. 47

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John B. NORTON, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawson Francis PALMER, Defendant-Appellant.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thor JORGENSEN, Defendant-Appellant.

Nos. 25576, 25400 and 24972.

Supreme Court of Colorado, En Banc.

March 5, 1973.

David L. Wood, Dist. Atty., Stuart Van Meveren, Asst. Dist. Atty., Fort Collins, for plaintiff-appellant, People of State of Colo.

Walter L. Gerash, Denver, Fischer, Wilmarth & Hasler, Fort Collins, Roger Pomainville, Longmont, for defendant-appellee, Norton.

Charles J. Onofrio, Denver, for Colo. Right to Life Committee, a Colo. non profit corp., Birthright, Inc., a Colorado non profit corp., Archbishop Vehr Catholic Physicians Guild and individual listed physicians, on behalf of all unborn children in the State of Colo., amici curiae.

Richard D. Lamm, Denver, Roy Lucas, San Francisco, Cal., for Colo. Medical Society, The Colo. Public Health Assn., The Colo. Psychiatric Assn., The Colo. Psychological Society, The Colo. Assn. for Study of Abortion, and individual listed physicians, amici curiae.

John P. Moore, Atty. Gen., John E. Bush, Duputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for People of State of Colo. in Nos. 25400 and 24972.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Deputy State Public Defender, Denver, for defendant-appellant, Palmer.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy Public Defender, Randolph M. Karsh, Deputy State Public Defender, Denver, for defendant-appellant, Jorgensen.

PRINGLE, Chief Justice.

For the purposes of this opinion, we have consolidated three cases now on appeal before this Court. They consist of People v. Norton, No. 25576, People v. Palmer, No. 25400, and People v. Jorgensen, No. 24972. In Norton the district court held the Colorado criminal aborton statuteunconstitutional and the defendant was discharged. In Palmer and Jorgensen the trial courts held the Colorado criminal abortion statute constitutional and the defendants in those cases were found guilty by a jury and received sentences to the penitentiary. Each of these appeals presents the same issue, viz., that the Colorado criminal abortion statute, 1971 Perm.Supp., C.R.S.1963, 40--6--101 to 40--6--104, is unconstitutional. For reference we include as Appendix A, a reproduction of the statute in question. In addition to the named litigants, the Colorado Right to Life Committee and many physicians entered the appeals as amici curiae, expressing views which would uphold the state's right to restrict and prohibit abortions. On the other hand, the Colorado Medical Society, the Colorado Public Health Association, the Colorado Psychiatric Association, the Colorado Psychological Society, the Colorado Association for the Study of Abortion, and many physicians also entered as amici curiae, contending that the statute in question is unconstitutional, as being too restrictive upon the right of a woman to obtain an abortion.

All of the contending parties have now advised us that the issues presented by the cases before us have been determined by Roe v. Wade, --- U.S. ---, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, --- U.S. ---, 93 S.Ct. 739, 35 L.Ed.2d 201, both decided by the United States Supreme Court on January 22, 1973, and that those decisions compel us to strike much of the Colorado Criminal Abortion Act as unconstitutional. We agree. Whatever the reasoning in those cases, we are required by constitutional principles to obey the result which they command.

Doe v. Bolton, Supra, deals with the Georgia criminal abortion statute which is strikingly similar to our own. Doe provides the guidelines which we are compelled to follow. As the Attorney General and the Right to Life Committee suggest, they require us, in the context of the issues presented to us, to strike from the Colorado Criminal Abortion statute, as follows:

(1) From Sect. 40--6--101, the following--all of Sect. (2); that portion of section (3) following the words 'by a licensed physician using accepted medical procedures;' Sect. (3)(a) in its entirety; Sect. (3)(b) in it entirety; and Sect. (4) in its entirety.

(2) From Sect. 40--6--104, the sentence in the third line beginning with the word 'nor' and continuing to the end of the sentence.

We point out again that we have dealt only with the issues presented to us by these appeals. In Roe, supra, and Doe, supra, the United States Supreme Court has laid down accepted areas within which a state may regulate in the field of abortion; that however, remains a legislative function and not a judicial one.

The district court judgment in People v. Norton is affirmed.

The judgments in People v. Palmer and People v. Jorgensen are reversed and remanded to the district court with directions to vacate the judgments and to dismiss the actions.

KELLEY, J., does not participate.

APPENDIX A

1971 Perm.Supp., Colorado Revised Statutes 1963

(ABORTION)

(The italicized portions are held unconstitutional or of no effect by the foregoing opinion.)

40--60--101. Definitions. As used in sections 40--6--101 to 40--6--104;

(1) 'Pregnancy' means the implantation of an embryo in the uterus.

(2) 'Licensed hospital' means one licensed or certificated by the Colorado department of health.

(3) 'Justified medical termination' means the intentional ending of the pregnancy of a woman at the request of said woman or, if said woman is under the age of eighteen years, then at the request of said woman and her then living parent or guardian, or, if the woman is married and living with her husband, at the request of said woman and her husband by a licensed physician using accepted medical procedures In a licensed hospital upon written certification by all of the members of a special hospital board that:

(a) Continuation of the pregnancy, in their opinion, is likely to result in: The death...