The principal pre-Roe statute prohibited performance of an abortion on a pregnant woman “unless the same shall have been necessary to preserve the life of such woman.”1 Another statute provided: “Any person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, be guilty of manslaughter.”2 And under a third statute, the “wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.”3
In People v. Bricker,4 and Larkin v. Calahan,5 the Michigan Supreme Court considered the constitutionality of these statutes in light of the Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton. In Bricker, the court, while affirming the conviction of a layman for conspiracy to commit an abortion, held that under the Supremacy Clause, the state’s public policy to proscribe abortion had to be subordinated to the federal constitutional requirements elucidated in Roe and Doe.6 Accordingly, § 750.14 was construed not to apply to an abortion performed by a physician in the exercise of his or her medical judgment.7 “[A] physician,” however, “may not cause a miscarriage after viability except where necessary, in his or her medical judgment, to preserve the life or health of the mother.”8 “[E]xcept as those cases defined and exempted under Roe v. Wade and Doe v. Bolton, . . . criminal responsibility attaches.”9
In Larkin, the supreme court held that § 750.322 “is limited in its scope to abortions caused by felonious assault upon the mother, which result in the death of an unborn quick child en ventre sa mere.”10 Finally, in conformity with Roe v. Wade, the court held that the word “child,” as used in §§ 750.322 and 750.323, means “a viable child in the womb of its mother.”11 The pre-Roe statutes have not been repealed,12 and would be enforceable if Roe v. Wade were overruled.
1 Mich. Comp. Laws Ann. § 750.14 (West 1968).
2 Id. § 750.323.
3 Id. § 750.322.
4 208 N.W.2d 172 (Mich. 1973).
5 208 N.W.2d 176 (Mich. 1973).
6 Bricker, supra, n. 4, 208 N.W.2d at 175. This gloss on the pre-Roe statute effectively limited its application to post-viability abortions.
9 Id. at 176. See, e.g., People v. Higuera, 625 N.W.2d 444 (Mich. Ct. App. 2001) (upholding indictment of physician for performing non-therapeutic, post-viability abortion in violation of § 750.14, as construed by Bricker).
10 Larkin, supra, n. 5, 208 N.W.2d at 179.
11 Id. at 180.
12 See Mich. Comp. Laws Ann. §§ 750.14, 750.322, 750.323 (West 2004). The Michigan Court of Appeals has held that § 750.14 has not been repealed by implication with the enactment of substantial post-Roe legislation regulating abortion. See People v. Higuera, supra, n. 9, 625 N.W.2d at 444, 448-49.
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