State v. Strance

• Decision Date: 09 February 1973
• Docket Number: No. 961,961
• Citation: State v. Strance, 84 N.M. 670, 506 P.2d 1217, 1973 NMCA 24 (N.M. App. 1973)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Gordon STRANCE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1217

506 P.2d 1217

84 N.M. 670

STATE of New Mexico, Plaintiff-Appellee, v. John Gordon STRANCE, Defendant-Appellant.

No. 961.

Court of Appeals of New Mexico.

Feb. 9, 1973.

[84 NM 670] Phil Krehbiel, Toulouse & Moore, P.A., Albuquerque, for defendant-appellant.

Charles W. Daniels, Paul A. Phillips, Albuquerque, New Mexico Civil, Liberties Union, amicus curiae.

David L. Norvell, Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of criminal abortion (§ 40A--5--3, N.M.S.A.1953 (2nd Repl.Vol.1972)) defendant appeals. Defendant's third point for reversal, the unconstitutionality of the criminal abortion statute, is dispositive of the appeal.

The statutory scheme under which defendant was convicted reads as follows:

'40A--5--1. Definitions.--As used in this article (40A--5--1 to 40A--5--3);

A. 'pregnancy' means the implantation of an embryo in the uterus;

B. 'accredited hospital' means one licensed by the health and social services department;

C. '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 (18) years, then at the request of said woman and her then living parent or guardian, by a physician licensed by the state of New Mexico using acceptable medical procedures in an accredited hospital upon written certification by the members of a special hospital board that:

(1) the continuation of the pregnancy, in their opinion, is likely to result in the death of the woman or the grave impairment of the physical or mental health of the woman; or

(2) the child probably will have a grave physical or mental defect; or

(3) the pregnancy resulted from rape, as defined in sections 40A--9--2 through 40A--9--4 NMSA 1953. Under this paragraph, to justify a medical termination of the pregnancy, the woman must present to the special hospital board an affidavit that she has been raped and that the rape has been or will be reported to an appropriate law enforcement official; or

(4) the pregnancy resulted from incest.

D. 'special hospital board' means a committee of two (2) licensed physicians or their appointed alternates who are members of the medical staff at the accredited hospital where the proposed justified medical termination would be performed, and who meet for the purpose of determining the question of medical justification in an individual case, and maintain a written record of the proceedings and deliberations of such board.'

'40A--5--2. Persons and institutions exempt.--This article (40A--5--1 to 40A--5--3) does not require a hospital to admit any patient for the purposes of performing an abortion, nor is any hospital required to create a special hospital board. A person who is a member of, or associated with, the staff of a hospital, or any employee of a hospital, in which a justified medical termination has been authorized and who objects to the justified medical termination on moral or religious grounds shall not be required to participate in medical procedures which will result in the termination of pregnancy, and the refusal of any such person to participate shall not form the basis of any disciplinary or other recriminatory action against such person.' '40A--5--3. Criminal abortion.--Criminal abortion consists of administering to any pregnant woman any medicine, drug, or other substance, or using any method or means whereby an untimely termination of her pregnancy is produced, or attempted to be produced, with the intent to destroy the fetus, and the termination is not a justified medical termination.

Whoever commits criminal abortion is guilty of a fourth degree felony. Whoever commits criminal abortion which results in the death of the woman is guilty of a second degree felony.'

We reverse and remand for discharge holding that the italicized portions of the above statute (§ 40A--5--1, supra) are unconstitutional by virtue of the holdings in Doe v. Bolton, --- U.S. ---, 93 S.Ct. 739, 35 L.Ed.2d 201, decided January 22, 1973 and Roe v. Wade,--- U.S. ---, 93 S.Ct. 705, 35 L.Ed.2d 147, decided January 22, 1973. We see no reason to repeat the scholarly discussion of Mr. Justice Blackmun in the majority opinions in those cases. Suffice for the benefit of this opinion we set forth only the summaries in Roe and Doe.

The Roe summary reads:

'1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term 'physician,' as it has been employed in the preceding numbered paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In Doe v. Bolton, post, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and example of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.'

The Doe summary reads:

'In summary, we hold that the JCAH accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. . . .'

By our holding we have of necessity limited the definition of 'justified medical termination.' As quoted from Bradbury & Stamm Const. Co. v. Bureau of Revenue, 70 N.M. 226, 372 P.2d 808 (1962) in State v. Spearman, 84 N.M. 366, 503 P.2d 649 (Ct.App.1972):

'It is well established in this jurisdiction that a part of a law may be invalid and the remainder valid, where the invalid part may be separated from the other portions, without impairing the force and effect of the remaining parts, and if the legislative purpose as expressed in the valid portion can be given force and effect, without the invalid part, and, when considering the entire act it cannot be said that the legislature would not have passed the remaining part if it had known that the objectionable part was invalid. . . .'

Based upon the severability clause contained in the criminal abortion Act we cannot say the Legislature would not have passed the valid portions of the Act had it known certain...