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.” 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.” 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.”
v. Bricker, and Larkin
v. Calahan, 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. Accordingly, § 750.14
was construed not to apply to an abortion performed by a
physician in the exercise of his or her medical judgment. “[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.” “[E]xcept
as those cases defined and exempted under Roe v. Wade and Doe
v. Bolton, . . . criminal responsibility attaches.”
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
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.” The
pre-Roe statutes have not been repealed, and would
be enforceable if Roe v. Wade were overruled.
Mich. Comp. Laws Ann. § 750.14 (West
172 (Mich. 1973).
176 (Mich. 1973).
n. 4, 208 N.W.2d at 175. This gloss on the pre-Roe statute
effectively limited its application to post-viability abortions.
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).
n. 5, 208 N.W.2d at 179.
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.