State v. Barquet

Decision Date14 February 1972
Docket NumberNo. 41596,41596
Citation262 So.2d 431
PartiesSTATE of Florida, Appellant, v. Luis Bulas BARQUET et al., Appellees.
CourtFlorida Supreme Court

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant.

Marvin J. Emory, Jr., of Law Offices of Carr & Emory, Miami, for appellees.

Robert M. Brakes, Coral Gables, and Robert B. Kane, Tallahassee, as amici curiae.

ADKINS, Justice.

This is a direct appeal from the Criminal Court of Record of Dade County, Florida, which held that Fla.Stat. §§ 782.10 and 797.01, F.S.A., relating to abortions, were unconstitutional. We have jurisdiction. Fla.Const., art. V, § 4(2), F.S.A.

At the outset, we emphasized that the emotional and explosive question of whether an abortion should be prohibited or permitted is a matter entirely within the discretion of the legislative branch of government, subject only to constitutional limitations. Governmental powers are divided into the executive, legislative and judicial branches. The lawmaking function is the chief legislative power. This function involves the exercise of discretion as to the contents of a statute, its policy or what it shall be. See 4 F.L.P., Constitutional Law, § 33. The judicial branch is constitutionally forbidden from exercising any powers appertaining to the legislative branch (Fla.Const., art. II, § 3), and will not suggest a solution to this sensitive problem.

We are concerned only with the constitutionality of Fla.Stat. §§ 782.10 and 797.01, F.S.A. The validity of both statutes must be considered together in the present challenge since this Court is bound by the construction it placed upon Fla.Stat. § 797.01, F.S.A., in Carter v. State, 155 So.2d 787 (Fla.1963). In Carter v. State, Supra, we held that Fla.Stat. § 797.01, F.S.A., was able to withstand the constitutional challenge only if considered in parimateria with Fla.Stat. § 782.10, F.S.A. The Legislature's subsequent reenactment of Fla.Stat. § 797.01, F.S.A., affirmed this interpretation. See Walsingham v. State, 250 So.2d 857 (Fla.1971). Therefore, these statutes must stand or fall together. They read as follows:

'782.10 Abortion.--Every person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter.'

'797.01 Performing abortion; punishment.--Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman does not die in consequence thereof, be punished by imprisonment in the state prison not exceeding seven years, or by fine not exceeding one thousand dollars.'

If the statutes contained a clause reading 'necessary to the preservation of the mother's life Or health' instead of the clause 'necessary to preserve The life,' the statutes could be held constitutional (United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601), for a statute could constitutionally provide for an abortion if same is necessary for the preservation of the mother's Health. See Walsingham v. State, Supra.

Appellees were charged, inter alia, with conspiring to commit abortions and performing abortions. The trial judge granted a motion to dismiss the information and held the above-quoted statutes to be unconstitutional, relying upon the reasoning in Walsingham v. State, Supra.

Appellees advance two reasons why the statutes should be held unconstitutional:

First: Fla.Stat. § 797.01, F.S.A., is vague, and, therefore, violates the United States Constitution, Fourteenth Amendment;

Second: Fla.Stat. § 797.01, F.S.A., whether read in pari meteria with Fla.Stat. § 782.10, F.S.A., as required by Carter v. State, 155 So.2d 787 (Fla.1963), or not, is an unreasonable invasion into a female's fundamental right to privacy, thereby violating substantive due process guaranteed by United States Constitution, Fourteenth Amendment.

If a statute in defining a criminal offense, omits certain necessary and essential provisions which serve to impress the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiencies or undertake to make the statute definite and certain. See State ex rel. Lee v. Buchanan, 191 So.2d 33, text 36 (Fla.1966). To do so would be to perform a lawmaking function in violation of Fla.Const. Const. art. II, § 3. The public must be informed as to acts which are crimes by statute, rather than by judicial opinion.

As stated in Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971):

'An act of the Legislature, to have the force and effect of a law, must be reasonably definite and certain. 82 C.J.S. Statutes § 68a. This is an essential element of due process of law. The constitutional requirement of definiteness is violated by an enactment that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held responsible for conduct which he could not reasonably understand to be proscribed. The vice of vagueness in statutes is the treachery they conceal in determining what persons are included or what acts are prohibited.' (p. 854)

The Attorney General, disturbed by the opinion rendered in Walsingham v. State, Supra, cites several cases holding that the clause, 'unless the same shall have been necessary to preserve the life of such mother,' does not make the statute vague. These authorities are: Rosen, M.D. v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (La.E.D.1970); State v. Abodeely, 179 N.W.2d 347 (Iowa 1970); Steinberg v. Brown, 321 F.Supp. 741 (Ohio N.D.1970).

On the other hand, the Appellees rely strongly upon the authorities discussed in Walsingham v. State, Supra. These authorities are: People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969); Roe v. Wade, 314 F.Supp. 1217 (Tex.N.D.1970).

In addition, Appellees refer to Doe v. Scott, 321 F.Supp. 1385 (Ill.N.D.1971), where a three-judge panel speaking through the Chief Circuit Judge said:

'The question thus becomes whether men of ordinary intelligence must guess at the meaning of the words, 'necessary for the preservation of the woman's life.'

'We note at the outset that these words, or substantially identical ones, have convinced some courts that they are incapable of certain interpretation, (E.g., Roe v. Wade, 314 F.Supp. 1217, 1223 (N.D.Tex.1970); United States v. Vuitch, 305 F.Supp. 1032, 1034 (D.D.C.1969); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, 197 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970).) and other courts have disagreed. (E.g., Babbitz v. McCann 310 F.Supp. 293, 298 (E.D.Wis.1970); Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217, (E.D.La.1970); Steinberg v. Rhodes (Brown), 321 F.Supp. 741 (N.D.Ohio, filed Dec. 18, 1970).) If courts cannot agree on what is the essential meaning of 'necessary for the preservation of the woman's life' and like words, we fail to see how those who may be subject to the statute's proscriptions can know what it prohibits. On the issue of vagueness, we are in agreement with the reasoning of People v. Belous (71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970) and Roe v. Wade. (314 F.Supp. 1217 (N.D.Tex.1970).) One need not inquire in great depth as to the meaning of such words as 'necessary' and 'preserve' to conclude that the holdings of those cases are correct. 'Necessary' has been characterized as vague by the United States Supreme Court and has been similarly described by other courts. It is 'a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, proper, or conducive to the end sought.'

'The word 'preserve' is similarly susceptible of so broad a range of connotations as to render its meaning in the statute gravely amorphous, since it may mean anything from maintaining something in its status quo to preventing the total destruction of something. The treating physician who believes an abortion is medically or psychiatrically indicated thus finds himself threatened with becoming a felon as well as with the possibility of losing his right to practice his profession if he errs in the legal interpretation of a penal statute, the words of which have not been sufficiently definite for courts to agree on their meaning. This is precisely the kind of situation that the void-for-vagueness doctrine is intended to prevent.' (pp. 1388--1389)

In our opinion, men of ordinary intelligence must guess at the meaning of the words, 'necessary to preserve the life of such mother,' and the statutes are so vague as to violate the United States Constitution, Fourteenth Amendment.

This Court is well aware of the pendency of various appeals before the United States Supreme Court concerning the identical question.

Although similar statutes may be held valid by the United States Supreme Court, it does not necessarily follow that they are valid under the state constitution. As stated in 20 Am.Jur.2d Courts, § 225, pp. 556--557:

'State courts are not bound to follow a decision of a federal court, even the United States Supreme Court, dealing with state law. Thus a state court is not bound to follow a decision of a federal court, even the ...

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