Jobe v. State

509 P.2d 481 (1973)

Virgil Roy JOBE, Appellant,
v.
STATE of Oklahoma, Appellee.

No. A-15732.

Court of Criminal Appeals of Oklahoma.

January 31, 1973. Rehearing Denied May 2, 1973.

O.A. Cargill, Jr., Stanley Pierce, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Gary M. Bush, Asst. Atty. Gen., for appellee.

OPINION AND DECISION

BRETT, Judge.

Appellant, Virgil Roy Jobe, hereinafter referred to as defendant as he was known in the trial court, was convicted in the District Court of Oklahoma County, Case No. 69-839, by a jury verdict of performing an unlawful abortion, prohibited by 21 Ohio St. 1971, § 861, and was sentenced to serve five years imprisonment. From that judgment and sentence an appeal has been perfected.

The Oklahoma Anti-Abortion Statute, 21 Ohio St. 1971, § 861, provides:

"Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not less than two nor more than five years."

It will not be necessary to set forth the facts concerned in this appeal for the reason the Oklahoma Statute makes substantially the same provisions as those contained in the Texas State Penal Code, Article 1191, Vernon's Ann., which was struck down as being unconstitutional by the United States Supreme Court in Roe et al. Appellants v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, decided by the United States Supreme Court on January 22, 1973. In summary the United States Supreme Court stated:

"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." (Emphasis in original.)

We therefore declare, for the same reasons set forth by the United States Supreme Court in Roe v. Wade, supra, that the Oklahoma Abortion Statute, Title 21 Ohio St. 1971, §§ 861 and 862 are unconstitutional as being violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

We are therefore of the opinion that the conviction of the defendant, Virgil Roy Jobe, should be reversed and remanded with instructions to dismiss the charge.

It is so ordered.

BLISS, P.J., and BUSSEY, J., concur.