Stam v. State, 7910SC546

• Decision Date: 17 June 1980
• Docket Number: No. 7910SC546,7910SC546
• Citation: 267 S.E.2d 335,47 N.C.App. 209
• Parties: Paul STAM, Jr. v. The STATE of North Carolina; James B. Hunt, Jr., Individually and in his official capacity as Governor of the State of North Carolina; Rufus Edmisten, in his official capacity as Attorney General of the State of North Carolina; Sara Morrow, Individually and in her official capacity as Secretary of the Department of Human Resources of the State of North Carolina; North Carolina Department of Human Resources; Robert Ward, Individually and in his official capacity as Director of the Division of Social Services of the Department of Human Resources of the State of North Carolina; Social Services Commission; James Wight, Individually and in his official capacity as Director of the Wake County Department of Social Services; Wake County, a body politic.
• Court: North Carolina Court of Appeals

Page 335

267 S.E.2d 335

47 N.C.App. 209

Paul STAM, Jr. v. The STATE of North Carolina; James B. Hunt, Jr. Individually and in his official capacity as Governor of the State of North Carolina; Rufus Edmisten, in his official capacity as Attorney General of the State of North Carolina Sara Morrow, Individually and in her official capacity as Secretary of the Department of Human Resources of the State of North Carolina; North Carolina Department of Human Resources; Robert Ward, Individually and in his official capacity as Director of the Division of Social Services of the Department of Human Resources of the State of North Carolina; Social Services Commission; James Wight Individually and in his official capacity as Director of the Wake County Department of Social Services; Wake County, a body politic.

No. 7910SC546.

Court of Appeals of North Carolina.

June 17, 1980.

Plaintiff appellant pro se.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Steven M. Shaber, Raleigh, for the State of North Carolina, appellee.

Michael R. Ferrell, County Atty., Raleigh, for Wake County, appellee.

PARKER, Judge.

Initially, plaintiff contends that the use of state tax monies for the funding of elective abortions through the State Abortion Fund is unconstitutional because a human fetus is a "person" within the meaning of Article I, Sections 1 & 19 of the North Carolina Constitution and is therefore entitled to the constitutional protections of those sections. We note at the outset that there is no federal constitutional requirement that a state provide funding for elective abortions. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). Thus, the narrow question which plaintiff has initially raised on this appeal is whether the North Carolina Constitution affords constitutional protection to fetal life such that the state may not provide funds for the performance of medically unnecessary abortions.

Article I, § 1 of the Constitution of North Carolina provides:

The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

Article I, § 19 provides in part:

Law of the land; equal protection of the laws. No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.

Although it is basic that constitutional guaranties should be liberally construed, see, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964), it is equally basic that such guaranties are not to be construed as absolute or without limitations. In interpreting the meaning of a word or phrase used in a constitutional provision, our courts have often attempted to ascertain the intention of those by whom the constitution was adopted. Elliott v. Board of Equalization, 203 N.C. 749, 166 S.E. 918 (1932); Collie v. Commissioners, 145 N.C. 170, 59 S.E 44 (1907). Also, the courts of this State have looked to interpretations of similar words or phrases in the U.S. Constitution. Although decisions of the Supreme Court of the United States construing federal constitutional provisions are not binding on our courts in interpreting cognate provisions in the North Carolina Constitution, they are, nonetheless, highly persuasive. Watch Co. v. Brand Distributors, 285 N.C. 467, 206 S.E.2d 141 (1974). Having considered both the probable intent of the framers of our Constitution, as well as the U.S. Supreme Court's interpretation of the similar wording in the Federal Constitution, we hold that a fetus is not a "person" within the meaning of Article I, §§ 1 and 19 of the Constitution of North Carolina.

The intention of those by whom our Constitution was drafted should be determined by looking "to the history, general spirit of the times, and the prior and the then existing law . . . ." Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953). The "Law of the Land" clause was originally adopted as Section 12 of the Declaration of Rights which, by Section 44 of the Constitution of 1776 of North Carolina, was incorporated as a part of the State Constitution. Originally, the section protected a "freeman" only; however, in 1868 that limited protection was extended to protect a "person." In the same year, 1868, Article I, § 1 was newly added to reinforce the right of "all men" to life. The 1946 revisions amended the Constitution to the extent of substituting the word "person" for "men" in Article I, § 1, as well as in other sections of our Constitution. See Gardner, "The Continuous Revision of Our State Constitution," 36 N.C.L.Rev. 297 (1958). Historical precedent persuades us that it was not the intent of those who drafted the Constitution to protect the unborn in the full constitutional sense. Although there is some dispute on the issue, the general conclusion of legal scholars is that abortion of an unborn child was not homicide at common law, and that consensual abortion was no crime at all. See, e. g., Means, "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?," 17 New York Law Forum 335 (1971); Note, "The Law and the Unborn Child: The Legal and Logical Inconsistencies," 46 Notre Dame Lawyer 349 (1971).

The first reported case in which our Supreme Court applied the common law of abortion was State v. Slagle, 82 N.C. 653 (1880), in which it was held that it was a misdemeanor to administer a noxious drug to a pregnant woman with intent to produce an abortion. Upon later hearing of the same case, reported in 83 N.C. 630 (1880), the Court adopted the view of the courts of Pennsylvania: "It is not the murder of a living child which constitutes the offence (sic), but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life and gestation has begun, the crime may be perpetrated." 83 N.C. at 632. It is apparent, then, that even though held to be a crime under the common law as adopted by this state, the crime was not murder, the taking of a person's life, but the destruction of the potentiality of life and, as such, merely a misdemeanor. Even when the crime of abortion was made a statutory offense in this State in 1881, it carried a maximum punishment of ten years imprisonment with a fine. 1881 Sess. Laws, c. 351, s. 1.

Neither is there any indication in the history of the civil law in this State that the fetus was ever regarded in the complete sense as a "person" prior to birth. This is not to say that the state did not accord certain rights and protections to the unborn child in anticipation of its eventual birth and capacity to exercise the full rights of a "person." At common law, a child en ventre sa mere could not acquire property by deed. Dupree v. Dupree, 45 N.C. 164 (1853). Such a child could, however, take by will contingent upon his live birth. Barringer v. Cowan, 55 N.C. 436 (1856); see also, Mackie v. Mackie, 230 N.C. 152, 52 S.E.2d 352 (1949). As early as 1809 the North Carolina Supreme Court recognized that after-born children were entitled to a distributive share of an intestate's estate. Hill v. Moore, 5 N.C. 233 (1809). The common law as to deeds was changed by N.C.Rev.Code Ch. 43, § 4 (1854) which provided that an unborn infant in esse "shall be deemed a person capable of taking by deed of other writing, any estate whatever in the same manner as if he were born." (Emphasis added). In discussing the modern successor to that statute, G.S. 41-5, our Supreme Court stated:

It seems clear to us that G.S. 41-5 gives to an unborn infant the same capacity to take property by "deed or other writing," as such infant has under the law governing its right to take by inheritance or devise. . . . By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth, but not for purposes working to his detriment. The interest taken by the child at birth dates back to the time of conception or to the later originating of the title, and cannot be defeated by intermediate proceedings to which he was not a party. " (Emphasis added).

Mackie v. Mackie, supra at 154-55, 52 S.E.2d at 354.

The view expressed in Mackie, that an unborn child may be a "person" for some purposes, is qualified in one significant respect: Live birth, the event which the "legal fiction" anticipates, is a condition precedent to the exercise of the property rights of the child en ventre sa mere. The rule of Deal v. Sexton, 144 N.C. 157, 56 S.E. 691 (1907), that an inheritance or estate of such a child may not be destroyed by judicial proceedings to which it was neither a party nor represented by a guardian ad litem is not inconsistent with the view that a fetus was not historically a "person" within the term's full legal meaning. In that case, the living heirs sought partition of a decedent's land prior to the birth of a child of decedent who was at the time of decedent's death en ventre sa mere. The court indulged, just as the court in the later Mackie case did, in the legal fiction which treats the unborn child as if a person in anticipation of the most common end result of human pregnancy, live birth.

Thus, viewing the common law which was in existence in 1776 when the "Law of the Land" clause became part of our Constitution, and early statutory enactments in existence in 1868 when Article I, § 1 was adopted, as well as considering later judicial interpretations of the rights of the unborn, we find no historical indication that the constitutional protections of those sections were intended to extend to the unborn child. This Court is, of course,...