State v. Munson , 87 S.D. 245 ( 1973 )

206 N.W.2d 434 (1973)

STATE of South Dakota, Plaintiff and Appellant,
v.
H. Benjamin MUNSON, M.D., Defendant and Respondent.

No. 10828.

Supreme Court of South Dakota.

April 5, 1973.

Gordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierre, Jack Klauck, State's Atty., Rapid City, for plaintiff and appellant.

Homer Kandaras, Rapid City, Roy Lucas, Jr., New York City, for defendant and respondent.

HANSON, Justice.

Supplemental Opinion

In an opinion rendered by this Court on September 26, 1972, the constitutionality of the South Dakota abortion statute, SDCL 22-17-1, was sustained. See State v. Munson, M.D., 86 S.D. ___, 201 N.W.2d 123. Thereafter, defendant appealed said cause to the United States Supreme Court.

On March 27, 1973, the United States Supreme Court, ___ U.S. ___, 93 S. Ct. 1416, 35 L. Ed. 2d 683, entered its order in said matter directed to the members of this Court as follows:

"WHEREAS, lately in the Supreme Court of the State of South Dakota, there came before you a cause between the State of South Dakota, plaintiff and appellant, and H. Benjamin Munson, M. D., defendant and respondent, No. 10828, wherein the judgment of the said Supreme Court was duly entered on the twenty-sixth day of September A.D. 1972, as appears by an inspection of the jurisdictional statement from the Supreme Court of South Dakota and motion to affirm.

"AND WHEREAS, in the 1972 Term, the said cause having been submitted to the SUPREME COURT OF THE UNITED STATES on the said jurisdictional statement and motion to affirm:

"ON CONSIDERATION WHEREOF, it was ordered and adjudged on February 26, 1973, by this Court that the judgment of the said Supreme Court of South Dakota in this cause be vacated; and that this cause be remanded to the Supreme Court of the State of South Dakota for further consideration in light of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

"NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said appeal notwithstanding.

"Witness the Honorable WARREN E. BURGER, Chief Justice of the United States, the twenty-seventh day of March ____ in the year of our Lord one thousand nine hundred and seventy-three."

According to the majority opinion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the South Dakota abortion law would be considered unconstitutional in toto in violation of the Due Process Clause of the Fourteenth Amendment. Therefore, in compliance with the mandate of the United States Supreme Court the judgment of this Court entered on the 26th day of September, 1972, is vacated and the cause remanded with directions to dismiss the Information filed in this action by the State's Attorney in Pennington County.

Remanded and dismissed.

BIEGELMEIER, C. J., and WINANS and WOLLMAN, JJ., concur.

DOYLE, J., not participating.