Opinion
Docket No. 9579.
Decided September 27, 1973.
Appeal from Bay, John X. Theiler, J. Submitted Division 2 February 3, 1972, at Lansing. (Docket No. 9579.) Decided September 27, 1973.
Robert S. Nixon was convicted of abortion. Defendant appealed. Affirmed, 42 Mich. App. 332. The defendant appealed by leave granted to the Michigan Supreme Court which remanded the case to the Court of Appeals with instructions, 389 Mich. 809. Reversed.
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.
ON REMAND
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 N.W.2d 635 (1972). Thereafter the Supreme Court assumed jurisdiction over this case and the companion case People v Bricker, 42 Mich. App. 352; 201 N.W.2d 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 N.W.2d 176] (6-18-73) and People v Bricker, 389 Mich. 524 [ 208 N.W.2d 172] (6-18-73)". 389 Mich. 809, 810.
The Court in People v Bricker, 389 Mich. 524, 527, 529-530; 208 N.W.2d 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.