IS THERE A COMPLETE BAN ON ALL PRE-1973 ABORTIONS IN MICHIGAN AND IS IT BASED ON STATUTE 750.14 LIKE SOME PEOPLE CLAIM?

IS THERE A COMPLETE BAN ON ABORTIONS IN MICHIGAN before ROE v WADE BASED ON MICHIGAN STATUTE 750.14 AS SOME PRO-LIFE GROUPS CLAIM?

ABSTRACT: There has been a claim that Michigan is unique in abortion law. They say that Michigan has a complete ban on all abortions except where a mother’s life is endangered. Is their claim true? Not according to the Supreme Court ruling in People v. Nixon, a doctor who was convicted of performing an abortion. The Court upheld the conviction, claiming that the surgical procedure happened under bad conditions. At the same time, they ruled that the infamous abortion ban known by its Penal Code entry 750.14 was no longer applicable nor could it be used to convict a doctor who performed an abortion in a safe and sterile environment like a hospital or clinic that was specially equipped as a surgical center. The Court corrected a previous discrepancy that left those who enforce the law in a state of confusion by ruing that the words miscarriage and abortion could be used interchangeably. By creating the interchangeable clause, the Court restricted the intent of the 1931 Statutes 750.14 and 750.15, side by side laws that deal with the two words abortion and miscarriage inducement separately. It is no wonder confusion ensued.

Essentially, the Court gutted the Statute from being used against doctors, shielding them from being convicted for performing abortions under the touted “abortion ban.” The Court also let the Statute remain to be used against non-licensed people who performed a medical procedure like Bricker and anyone who distributes medicine to accomplish a miscarriage without being a licensed pharmacist or a doctor who induces miscarriages or conducts abortions in substandard conditions. This allowed the courts to go after back-alley abortionists, which was the original intent of 750.14 according to the Court and the Statutory language. The Court ruling was made before Roe became law in Michigan as Federal law. Those who claim that there is a pre-Roe ban are wrong if Nixon’s decision is the law of our State. For an in-depth look at the case, please continue reading!

NIXON AND ITS IMPACT ON 750.14,[1]THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.14 Miscarriage; administering with intent to procure; felony, penalty.[2]

“Administering drugs, etc., with intent to procure miscarriage—Any person who shall willfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.

The Michigan Supreme Court through appeal has ruled on the Michigan Statute 750.14, and it answers the question as to whether Michigan has a pre-Roe ban on all abortions minus the saving of the mother’s life. It came in an Appellate ruling during People v. Nixon, and the verdict says that 750.14 is not designed to support a Michigan abortion ban if I read the case correctly.

BACKGROUND OF MICHIGAN PENAL CODE 750.14

Nixon’s appeal to the Michigan Supreme Court began with a brief overview of common law before the 1846 ban on medicines that could induce a miscarriage (MCLA 750.14). The Michigan Supreme Court wanted that history in the record to support their interpretation of the 1931 codification of 750.14, as they were ruling on the Constitutionality of the Induced Miscarriage provision (750.14). At the heart of the 1846 Statute were regulations that included the need for two doctor’s opinion before an abortion could happen and that abortions were legal for an unquickened child. The Statutory language for a Quickened Child designates that a child who could be felt moving in the mother could not be aborted. Before 1846, the induced abortion of an unquickened child was not illegal.

The 1846 legislators enacted three provisions for the regulation of abortions and induced miscarriages as they relate to the unborn child and the mother. 1) legislation was passed that made the willful killing of a Quick Child when injuring the mother manslaughter.[3] 2) Legislators provided for the prosecution of anyone who administered any medications or drugs or used an instrument to induce a miscarriage upon a Quick Child with a willful intent to kill the unborn child with an exception for the saving of the mother’s life. This is the basis of the argument that Michigan has an iron-clad pre-Roe ban on abortion, has committed manslaughter if the child or mother died as a result of the process (42 MI. App. 336).[4] The last (3rd) provision of the legislators Statutory ruling was to declare that anyone who willfully used medicines or narcotics to induce a miscarriage to procure a miscarriage would be guilty of a misdemeanor, with the exception for the preservation of the life of the mother.[5]

A NEW DEFINITION AND A NEW APPLICATION OF THE LAW IN 1972

The court ruled that because the termination of an unquickened child was now a misdemeanor by an induced abortion and the termination of a quickened fetus was manslaughter; the legislators did not view the termination of an unquickened child to be the ending of a human being’s life (42 MI. App. 337). Their logic was if the legislators saw the unquickened child as being human, the proscribed penalty would remain consistent. Here is the main point of the Court’s opinion and why it is essential today when we are being told that Michigan has the most active bans on abortion pre-Roe. The 1972 Court identified 750.14 as the “so-called abortion Statute,” when they rendered their opinion that 750.14 had nothing to do with the protection of the unborn child. The Court determined that 750.14 was never meant to protect the rights, civil or otherwise, of the unborn when it came to the unquickened child. This ruling happened in 1972 and is pre-Roe.

The Court ruled that 750.14 exclusively protected the right of the mother, the woman who was pregnant, and not the child. The basis of their conclusion was the argument that surgical procedures and medical care were still primitive and highly risky in 1846. The Court advanced the opinion that the legislators of 1846 were wise in making it an act of criminality to perform invasive procedures that were highly risky unless they were applied to the saving of the mother’s life. The Court then observed that the rule was adopted before the advent of antiseptic surgical procedures and the advent of medical advancements that were made during the innovation of MASH (Mobile Army Surgical Hospitals) units during the Civil War, which made future surgeries less life-threatening events. The Court asserted that this was the proper way to interpret 750.14 and the criminalization of a mere attempt to miscarry by induction, and by attaching manslaughter charges if the woman died.

1846 AND 1931 HAD THE SAME GENERAL PROTECTIVE FOCUS: THE WOMAN NOT THE CHILD

It was the Court’s opinion that in the revision of Michigan Statutory Law of 1931 was no different than the 1846 Statute. The finding was upheld even though the Statute of 1931 increased the crime to felony status and excluded the two-doctor opinion mandate. Furthermore, the Court had a stated opinion that the 1931 revision predated the full range of antibiotics that are in the current medical arsenal to make surgical procedures safe for the patient. The court made a referral to a previous Supreme Court Michigan ruling on modern medicine and the law as it cited Womack v. Buchhorn (1971) as the Court said: “Since Newman has been decided, medical science has probably advanced more in one generation than in the previous 100 years or more. Legal philosophy and precedent have moved in response to scientific and popular knowledge (42 Mi. App. 339).”[6]

The ruling came down strong on the condemnation of any non-licensed personnel who attempted to perform abortions or miscarriages by surgery or medicine as in the People v. Bricker where a non-licensed individual was convicted of performing a medical procedure without proper licensing.[7] They ruled that the State of Michigan had no compelling reason why licensed physicians would be excluded from performing abortions in safe and sterile hospital environments.

BRICKER AND GARCIA SIMILARITIES AND DIFFERENCES IN CONVICTION

Although it a side issue, let me make a small comment about the Bricker ruling, as it is touted as the case where Michigan upheld a conviction of an abortionist after Roe became the law of the land in 1973. Professor William Wagner once told me that he couldn’t see why an ambitious profile attorney wasn’t seeking convictions on the same legal ruling as Bricker. I have to say that the truth is sad but true, nevertheless. Bricker wasn’t convicted of performing an abortion.

Bricker was convicted of performing a medical procedure without a license. There is a vast difference between the two, and the Court upheld that their ruling would not preclude the prosecution of a licensed physician from performing what they identified as “backroom butchery” in places that were substandard, dirty, ill-equipped or improperly staffed. Think of the movie “Gosnell,” and you will get the picture the Court was addressing. The Court ruled that Nixon was not a member of that exception. His conviction was upheld as he did not consult with the woman about her health or her mental state of being. Nixon was convicted similarly to Bricker with an exception. Nixon violated the standard and proper medical procedures of ascertaining whether or not the person was an appropriate candidate for the procedure, which they felt was a violation of 750.14 protective clauses for the life of the woman while determining that the Statute did not protect the early status of life for a first-trimester child.

This is what the Michigan Supreme Court said about 750.14 when it is applied to convicting professional medical personnel, like doctors, “Faced with this evidence we are forced to conclude that the intended purpose of MCLA 750.14, supra, is no longer existent as it applies to licensed physicians in a proper medical setting.” The Court continued by saying that it could no longer see any compelling reason to attempt the prosecution of any doctor who was duly licensed in Michigan for causing the induced miscarriage of an unquickened child. Additionally, the Supreme Court of Michigan stated that “Not only has the present Michigan abortion statute become unproductive of the end for which it was originally intended, i.e., the health and safety of the woman, but it would appear that it has become counter-productive.”

The Court also acknowledged the previous assertion that part of 750.14’s original language was unconstitutional, as the original language placed the burden of proof on innocence upon the defendant and not the prosecution. That is an unfair burden.[8]

NIXON CHANGED THE ABILITY TO CONVICT AN ABORTIONIST UNDER CERTAIN CONSIDERATIONS

The Court also said that the Statute was not vague, even if it was ruled irrelevant, based on People v Bricker, supra. The biggest thing to come out of Nixon was the finding that modern standards of medicine are safer than today than they were in 1846 and 1931. It also found that the Statutes allowed a woman the right to seek an abortion legally but denied her the right to have an abortion as she could not secure proper medical care, thus the law was unjust. By making this the precedence, the Court ruled that the 1846 Statute no longer carried out its intended purpose of allowing a woman to seek out a “therapeutic abortion performed in the first trimester by a licensed physician in a hospital environment (42 MI. App. 343).” [9]

I must inject that I am not happy in pointing this out, as I am an abolitionist when it comes to abortion on demand. But I also believe that it does not serve the pro-life community to advance a narrative that is not true.

The actual wording of the Court’s findings read like this, “Since a physician who performs an abortion by this opinion is not criminally liable for such action, it also follows that he will not be subject to prosecution for manslaughter under this statute. This is not to say that a physician who is grossly negligent in performing such an operation cannot be prosecuted for manslaughter (just as he might if he negligently caused the death of any patient); however, a physician who undertakes to perform a therapeutic abortion should not be held to be liable to criminal prosecution for the death of a patient which was not the result of negligent care. To place absolute criminal liability upon a physician for the death of his patient would be so inhibitory as to countervail the basic expectations of society as to the nature and duties of the physician.

This is not to be construed to mean that the license to practice medicine is an absolute bar to prosecution. When a physician, like defendant herein, undertakes to perform an abortion in a manner so repugnant to the very standard of professional care he is bound to uphold, the intended purpose of the statute of protecting the health of the woman is thereby invoked, and the physician may be properly prosecuted under MCLA 750.14, supra.” Robert Nixon, a licensed physician, was found guilty by a jury of the felony of abortion contrary to MCLA 750.14; MSA 28.204.1

THE IMPACT OF THE 1972 COURT ON THE UNQUICKENED CHILD

The Michigan Supreme Court further said that they did not believe that the legislative body of 1846 has the intention of protecting the unquickened child (fetus). Therefore, the fetus has no right to protection for continued existence. They also said that their opinion was not a statement about a woman’s right to privacy. The distinction was accomplished by stating that “we need not, and most emphatically do not, express any opinion as to whether the woman’s ‘right of privacy’ precludes any state action about abortion if the Legislature chooses to recognize the unquickened fetus as a new and separate human being.”

In other words, they left the door open to further consideration for the status of the unborn if the public, the legislators or others decided that a change needed to be made, like calling an unborn human child a human being.


[1] PEOPLE v. NIXON

Docket No. 9579.

42 Mich. App. 332 (1972)

201 N.W.2d 635

PEOPLE v. NIXON.

Michigan Court of Appeals.

Decided August 23, 1972.

[2] www.Legislature.mi/MPC/Act328/750.14

[3] https://www.leagle.com/decision/197237442michapp3321318#comments

[4] ___ https://www.leagle.com/decision/197237442michapp3321318#comments

[5] ___ https://www.leagle.com/decision/197237442michapp3321318#comments

[6] https://www.leagle.com/decision/197237442michapp3321318#comments

[7] https://law.justia.com/cases/michigan/supreme-court/1973/389-mich-524-2.html

[8] https://www.leagle.com/decision/197239442michapp3521337

[9] https://www.leagle.com/decision/197237442michapp3321318#comments

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