Vuitch v. State

• Decision Date: 24 November 1970
• Docket Number: No. 32,32
• Citation: 271 A.2d 371,10 Md.App. 389
• Parties: Milan M. VUITCH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 389

10 Md.App. 389

271 A.2d 371

Milan M. VUITCH v. STATE of Maryland.

No. 32.

Court of Special Appeals of Maryland.

Nov. 24, 1970.

Certiorari Denied Feb. 9, 1971.

Joseph R. Nellis, with whom were Leonard T. Kardy, Silver Spring, and M. William Adelson, Baltimore, on brief, for appellant.

Francis X. Pugh, Asst. State's Atty., Montgomery County, with whom were Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., William A. Linthicum, Jr., State's Atty. and Andrew L. Sonner, Asst. State's Atty., Montgomery County, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH, THOMPSON, MOYLAN and POWERS, JJ.

MURPHY, Chief Judge.

Maryland Code, Article 43, Sections 149E, 149F, and 149G contain the law of this State governing the commission of abortions. Section 149E provides, inter alia, that no person shall terminate a human pregnancy otherwise than by birth, with the exception that a physician licensed in Maryland may do so:

'* * * in a hospital accredited by the joint commission for accreditation of hospitals and licensed by the State Board of Health and Mental Hygiene and if one or more of the following conditions exists:

(1) Continuation of the pregnancy is likely to result in the death of the mother;

(2) There is a substantial risk that continuation of the pregnancy would gravely impair the physical or mental health of the mother;

(3) There is substantial risk of the birth of the child with grave and permanent physical deformity or mental retardation;

(4) The pregnancy resulted from a rape committed as a result of force or bodily harm or threat of force or bodily harm and the State's Attorney of Baltimore City or the county in which the rape occurred has informed the hospital abortion review authority in writing over his signature that there is probable cause to believe that the alleged rape did occur.'

Section 149E further provides that no physician shall terminate a human pregnancy otherwise than by birth, unless all of the following additional conditions exist:

(1) not more than twenty-six weeks of gestation has passed, (except in the case of (pregnancy likely to result in the death of the mother,) or where the fetus is dead) and

(2) authorization therefor has been granted in writing by a hospital abortion review authority appointed by the hospital.

Section 149E provides that the hospital abortion review authority shall keep written records of all requests for authorization and its action thereon; and that hospitals file annual reports of therapeutic abortions performed therein, setting forth the number of requests, authorizations and performances, and the grounds upon which such authorizations were granted and the procedures employed to cause the abortions, the reports to be forwarded to the joint commission on accreditation of hospitals and the State Board of Health and Mental Hygiene 'for the purpose of insuring that adequate and proper procedures are being followed in accredited hospitals.'

Section 149F provides that no person or hospital shall be required to participate in terminating any human pregnancies. Section 149G provides that a person is guilty of a misdemeanor if he:

'(1) Sells or gives, or causes to be sold or given, any drug, medicine, preparation, instrument, or device for the purpose of causing, inducing, or obtaining a termination of human pregnancy other than by a licensed physician in a hospital accredited by the joint commission for accreditation of hospitals and licensed by the State Board of Health and Mental Hygiene; or

(2) Gives advice, counsel, or information for the purpose of causing, inducing, or obtaining a termination of human pregnancy other than by such physician in such a hospital; or

(3) Knowingly assists or causes by any means whatsoever the obtaining or performing of a termination of human pregnancy other than by such physician in such a hospital.'

Appellant Dr. Milan Vuitch, a physician licensed to practice in Maryland, New York, Virginia, and the District of Columbia, was charged by criminal information with having violated the Maryland abortion statute (Section 149G(a) (3)) in that he 'unlawfully did knowingly assist and cause the obtaining of and performing of a termination of a human pregnancy of Rebekah Jayne Dodson at 8204 Grubb Road, Chevy Chase, Montgomery County, Maryland, a location which is not a hospital accredited by the joint commission for accreditation of hospitals and licensed by the State Board of Health and Mental Hygiene * * *.'

No objection to the criminal information, or motion to dismiss it, was filed prior to trial under Maryland Rule 725 b. ¹ The case went to trial before a jury. After the State had completed its case-in-chief, appellant filed a written motion for a judgment of acquittal (Maryland Rule 755) on the ground (a) that the State's evidence was legally insufficient to support a guilty verdict, and (b) that 'Section 149G of Article 43 * * *, making it a crime to terminate a human pregnancy, other than by a licensed physician in a hospital accredited by the joint commission for accreditation of hospitals and licensed by the State Board of Health and Mental Hygiene which is the sole legal basis * * * (for the charge) is an unwarranted discrimination against this Defendant, a physician licensed by the State of Maryland, in favor of practitioners of medicine in accredited and licensed hospitals; the sweep of the statute is unnecessarily broad and invades the area of protected freedoms of both the pregnant woman and the Defendant, a licensed physician, in the private pursuit of their lives and duty, and is without compelling State interest sufficient to justify this encroachment upon personal liberty, and, consequently, Section 149G * * * is invalid and unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, * * *.' In support of his motion, appellant presented oral argument on the question of the legal sufficiency of the evidence to support a guilty verdict; he presented no argument whatsoever in support of his constitutional claims, and the court denied the motion without commenting thereon. Appellant then offered evidence in support of his defense that he did not commit an abortion on Miss Dodson, and by so doing he withdrew his motion. Rule 755 b. At the end of the entire case, appellant orally renewed the motion, again without advancing any argument to support his constitutional claims, and again the court denied the motion without commenting thereon. The jury found Dr. Vuitch guilty and he was sentenced to pay a $5,000 fine and to imprisonment for three years, with a proviso for suspension of sentence and probation after serving one year.

I

On appeal, Dr. Vuitch contends that 'the conviction is void because of the facial unconstitutionality of Section 149G.' More particularly, he claims that in requiring that pregnancies be terminated only in designated hospitals, Section 149G 'is void for vagueness, uncontrolled delegation of legislative authority, and unjustifiable discrimination with respect both to physicians and to their patients.' He contends that Section 149G is constitutionally violative of the fundamental rights of the patient and her physician under the Fourteenth Amendment, in that it prohibits the free exchange of ideas by way of advice and treatment between physician and patient and their freedom and privacy of association; it prohibits physicians from practicing medicine according to the highest standards of medical practice and interferes with their personal freedom in the conduct of their profession; it interferes with the fundamental constitutional right of a woman to choose whether to bear children; and it constitutes an unreasonable and arbitrary discrimination between abortions on the one hand and all other types of surgery on the other. ²

The State contends that the question of the alleged unconstitutionality of Section 149G is not properly before us because the motion for judgment of acquittal, through which appellant sought to raise the issue, permits us to consider only the legal sufficiency of the evidence to prove the crime alleged, and not the constitutionality of the statute under which the criminal information was filed. The State further contends that the constitutional question was waived in any event for failure of appellant to raise it prior to trial by motion to dismiss the criminal information under Maryland Rule 725 b (see footnote 1).

Under Maryland Rule 755 a the motion for judgment of acquittal supersedes and takes the place of the motion for a directed verdict of not guilty. Maryland Code, Article 27, Section 593, which implements the right of the trial judge under Section 5 of Article 15 of the Maryland Constitution to pass upon the sufficiency of the evidence (see Giles v. State, 229 Md. 370, 183 A.2d 359, and Williams v. State, 5 Md.App 450, 247 A.2d 731), expressly provides that the motion for judgment of acquittal is based 'on the ground that the evidence is insufficient in law to justify * * * conviction * * *'; and that if the motion is denied, 'the defendant may have a review of such ruling on appeal.' ³ Without question, the office of the motion for judgment of acquittal is essentially limited to challenging the legal sufficiency of the evidence to support a guilty verdict; the motion seeks the obtention of a court-entered judgment of acquittal of the offense with which the accused stands charged. On appeal, when reviewing the refusal of the trial judge to grant the motion in a jury case, it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. Pressley v. State, 244 Md. 664, 224 A.2d 866; Williams v. State, supra. In other words, as more...