People v. Nixon

50 Mich. App. 38 (1973) 212 N.W.2d 797

PEOPLE
v.
NIXON

Docket No. 9579.

Michigan Court of Appeals.

Decided September 27, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.

Denfield, Timmer & Seelye (by Clifford W. Taylor), for defendant on appeal.

Before: DANHOF, P.J., and T.M. BURNS and VAN VALKENBURG,^[*] JJ.

ON REMAND

PER CURIAM:

Defendant, a licensed physician, was found guilty by a jury of the felony of abortion contrary to MCLA 750.14; MSA 28.204. Defendant appealed to this Court and his conviction was affirmed. See 42 Mich. App. 332; 201 NW2d 635 (1972). Thereafter the Supreme Court assumed jurisdiction over this case and the companion case People v Bricker, 42 Mich. App. 352; 201 NW2d 647 (1972). On June 20, 1973, the Supreme Court, after having rendered a decision in Bricker, remanded this case to this Court "for disposition not inconsistent with the dispositions ordered by this Court [the Supreme Court] in Larkin v Wayne Prosecutor (Beebe v Wayne Prosecutor), 389 Mich. 533 [208 NW2d 176] (6-18-73) and People v Bricker, 389 Mich. 524 [208 NW2d 172] (6-18-73)". 389 Mich. 809, 810.

The Court in People v Bricker, 389 Mich. 524, 527, 529-530; 208 NW2d 174, 175 (1973), held:

"Under the Supremacy Clause we are bound by the decisions of the United States Supreme Court in Roe v Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973), and other cases. Under the principles enunciated therein, our criminal abortion statute (MCLA 750.14; MSA 28.204) cannot stand as relating to abortions in the first trimester of a pregnancy as authorized by the pregnant woman's attending physician in exercise of his medical judgment."

* * *

"In light of the declared public policy of this state and the changed circumstances resulting from the Federal constitutional doctrine elucidated in Roe and Doe [Doe v Bolton, 410 U.S. 179; 93 S. Ct. 739; 35 L. Ed. 2d 201 (1973)], we construe § 14 of the penal code to mean that the prohibition of this section shall not apply to ``miscarriages' authorized by a pregnant woman's attending physician in the exercise of his medical judgment; the effectuation of the decision to abort is also left to the physician's judgment; however, a physician may not cause a miscarriage after viability except where necessary, in his medical judgment, to preserve the lift or health of the mother."

Our review of the lower court record reveals that defendant performed the abortion within the first trimester of pregnancy. On the authority of the Supreme Court's holding in Bricker we are compelled to reverse and discharge defendant.

Reversed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.