Spears v. Circuit Court, Ninth Judicial Dist., Warren County, State of Miss.

• Decision Date: 11 August 1975
• Docket Number: No. 74-3762,74-3762
• Parties: Lea SPEARS, Petitioner-Appellant, v. CIRCUIT COURT, NINTH JUDICIAL DISTRICT, WARREN COUNTY, STATE OF MISSISSIPPI, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 360

517 F.2d 360

Lea SPEARS, Petitioner-Appellant, v. CIRCUIT COURT, NINTH JUDICIAL DISTRICT, WARREN COUNTY, STATE OF MISSISSIPPI, Respondent-Appellee.

No. 74-3762.

United States Court of Appeals Fifth Circuit.

Aug. 11, 1975.

Roland C. Lewis (Court-appointed), Jackson, Miss., for petitioner-appellant.

Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

The instant appeal, the latest installment in the legal saga of the appellant, Lea Spears, is from the denial of her petition for the writ of habeas corpus. 28 U.S.C. § 2241 et seq. This litigation has a prodigious history beginning in 1969 when Spears was convicted in the Circuit Court of Warren County, Mississippi, of performing an abortion in violation of § 2223 Miss.Code 1942 (Supp.1966) (now codified as § 97-3-3 Miss.Code 1972). She was sentenced to a term of 10 years but the Supreme Court of Mississippi reversed her conviction, Spears v. State, 241 So.2d 148 (Miss.1970) (two Justices dissenting), because Spears was not confronted by the laboratory technician whose report furnished the basis for certain testimony as to the pregnancy of a prosecuting witness. A new trial ensued, Spears was reconvicted, and the conviction was affirmed without opinion. Spears v. State, 257 So.2d 876 (Miss.1972), cert. denied, 409 U.S. 1106, 93 S.Ct. 893, 34 L.Ed.2d 686 (1973). She was sentenced to a five year term and is presently confined in the Mississippi State Penitentiary. During the pendency of her second appeal a three judge federal court was convened in order to consider Spears' contention that the Mississippi abortion statute under which she was convicted was unconstitutional. In July 1974 the three judge panel held the statute valid "in every respect insofar as the plaintiff is concerned; . . . she is being punished by the State within the limits of the statute." Spears v. Ellis, 386 F.Supp. 653, 655 (S.D.Miss.1974). A petition for rehearing was denied on February 25, 1975. The Supreme Court of Mississippi had previously reached a similar result in a unanimous and well reasoned opinion denying an application for leave to file a petition for writ of error coram nobis. Spears v. State, 278 So.2d 443 (Miss.1973). In 1973 Spears filed her petition for writ of habeas corpus and in June 1974 the United States District Court, without conducting a hearing, denied the petition. ¹ This appeal followed and we affirm.

A brief summary of the facts is necessary in order to facilitate a discussion of the contentions Spears raises in this court. In 1969 Cynthia Ivey, a prosecuting witness, thought she was pregnant and went to the Bratley Clinic in Jackson, Mississippi, to obtain a pregnancy test. She was met by a receptionist who directed her to collect a urine specimen. The specimen was left with a nurse at the clinic and the receptionist was requested by Miss Ivey to relay the test results to Dr. Calvin Hull of the University of Mississippi Medical Center. The pregnancy test, conducted by a Bratley laboratory technician, was positive and Cynthia Ivey decided to obtain an abortion. With the assistance of her roommate, Glenda Jordan, another prosecuting witness, Miss Ivey made an appointment with Spears. The abortion procedure was performed. Subsequent to the procedure she developed a severe infection which necessitated a complete hysterectomy. Lea Spears was indicted in 1969 by a Warren County grand jury for the crime of abortion. The indictment read in part:

The grand jurors . . . present that Lea Spears . . . did . . . cause one, Cynthia Azlene Ivey, a woman pregnant with child to abort . . . which said abortion or miscarriage was not done by or on the advice of a physician, as being necessary for the preservation of the life of the said Cynthia Azlene Ivey, and the pregnancy of the said Cynthia Azlene Ivey not being caused by rape, contrary to the statute in such cases. . . . (emphasis added)

The Mississippi statute on which the indictment was based, section 2223 Miss.Code 1942 (Supp.1966), presently codified as section 97-3-3 Miss.Code 1972, provides in part as follows:

(1) Any person wilfully and knowingly causing, by means of any instrument . . . any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage shall be guilty of a felony unless the same were done by a duly licensed, practicing physician:

(a) where necessary for the preservation of the mother's life;

(b) where pregnancy was caused by rape.

Spears asserts on this appeal that the decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), render the Mississippi abortion statute unconstitutional and her conviction void. In a related contention, she argues that her indictment and the jury instructions prejudicially tracked unconstitutional portions of the abortion statute. She also contends that her sixth amendment right to confrontation was abrogated by the prosecution's failure to produce all of the Bratley laboratory employees who participated in obtaining, labeling, and testing the urine specimen. In addition to these contentions, which we consider to be the most substantive ones, Spears argues that she was denied due process by the state's alleged failure to reveal to the jury any arrangement between the prosecuting attorney and the prosecuting witnesses in return for their testimony against her, and by the court's curtailment of cross-examination on this point. She further alleges, rather ingeniously, that she was authorized to perform the procedure for which she was convicted by virtue of § 73-25-35 Miss.Code (1972) which provides, "Females engaged in the practice of midwifery are not prohibited from such practice, but are entitled to engage therein without a license." We shall consider these

contentions sequentially. The Mississippi Abortion Statute:

Section 2223 Miss.Code 1942 (Supp. 1966) Presently

Codified as Section 97-3-3 Miss.Code

1972

Initially we reiterate that two courts, in addition to the court below, have considered the constitutionality of this abortion statute. Both courts considered the opinions of the Supreme Court in Roe v. Wade and Doe v. Bolton, supra. The Mississippi Supreme Court held section 1 of the statute constitutional except for subsections (a) and (b), while not commenting on the rest of the statute, finding it unnecessary to do so in considering Spears' argument.

The three judge federal court in considering Spears' attack on the constitutionality of the abortion statute also held section 1 valid.

There is nothing overbroad, or vague, or indefinite about this Section 1 of this Act. The other part of the statute simply has no application to the facts in this case. There is nothing vague or indefinite about the term "physician". That is a commonly used and well known and accepted term which refers to a doctor of medicine who is practicing and licensed as such in Mississippi.

The vagueness doctrine as argument is laid to rest by the United States Supreme Court in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601. This statute of Mississippi irrefragably imparted a sufficient caveat or warning to Lea Spears that her actions were violative of State law.

The State of Mississippi has an impelling right and a pressing need for the enactment of such an abortion statute, and to punish any offenders or violators thereof. The sovereign State of Mississippi has a vested right to enact laws and to punish criminals for violating such laws in furtherance of its sovereign police power. Spears v. Ellis, 386 F.Supp. 653, 655 (S.D.Miss.1974).

The opinions of the three judge court and the Supreme Court of Mississippi should not be cast aside lightly, and we quote them with approval.

Spears' argument, as best we can discern it, is that the decisions by the Mississippi Supreme Court and the three judge federal court, notwithstanding their severance ² of section 1 from subsections (a) and (b), conflict with the opinions in Roe v. Wade and Doe v. Bolton. Section 1 of the Mississippi abortion statute is unconstitutional asserts Spears, because it does not distinguish between trimesters of pregnancy. She contends that the state may not regulate the termination of pregnancies in the first trimester and, therefore, the criminal sanctions imposed by section 1 of the statute are invalid. She argues that her only offense was to practice medicine without a license in violation of section97-23-43 Miss.Code 1972, and that any state prosecution under section 97-3-3 is duplicitous and deprives her of equal protection by improperly classifying types of medical procedures. Stated differently, she contends that it is unconstitutional to sanction her criminally for the performance of an abortion during the first trimester when she could only be charged with practicing medicine without a license for performing other medical procedures. This argument is fundamentally unsound. To say that a person is due equal protection of the law is not to require identical treatment as long as the distinctions between classes of people or classes of crimes are not arbitrarily drawn. See, Forms of Limited Practice under the Medical Practice Act, 26 U.Miami L.R. 804, 809 (1972); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, 1659 (1942); Connor v. Picard, 434 F.2d 673, 676 (1st Cir. 1970). Roe v. Wade explicitly recognized the state's interest in protecting health and medical standards within its borders and to that end stated, "(The state) may proscribe any abortion by a person who is not a physician . . . ." 410 U.S. 113, 165-166, 93 S.Ct. 705, 733, 35 L.Ed.2d 147, 184 (1973). In addition, the Mississippi...