PEOPLE OF MI V JOSE GILBERTO HIGUERA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 30, 2001
9:00 a.m.
Plaintiff-Appellant,
v
No. 213557
Wayne Circuit Court
LC No. 97-008841
JOSE GILBERTO HIGUERA,
Defendant-Appellee.
Updated Copy
March 30, 2001
Before: M.J. Kelly, P.J., and Jansen and White, JJ.
WHITE, J.
The people appeal by leave granted the circuit court's order affirming the district court's
dismissal of the district court's charge against defendant of violating the criminal abortion statute,
MCL 750.14; MSA 28.204.
unconstitutionally vague.
The district and circuit courts concluded that the statute is
We reverse and remand for reinstatement of the charge against
defendant.
I
The statute, which on its face purports to criminalize all abortions performed at any time
during pregnancy, except when necessary to preserve the life of the mother,1 appears to be in
direct contravention of Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973).2 We
cannot, however, evaluate the constitutionality of this statute on its face. Rather, we are obliged
to read the statute in light of the decision of the Michigan Supreme Court in People v Bricker,
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389 Mich 524; 208 NW2d 172 (1973). Nor are we presented with a broad challenge, in an action
for declaratory relief, to the constitutionality of the statute. The question presented is, rather,
whether a particular criminal prosecution under the statute would be constitutionally infirm.
Under these circumstances, we are constrained to conclude that the circuit court erred in
affirming the district court's dismissal of the charge.
II
Defendant, a medical doctor specializing in obstetrics and gynecology, was charged with
violating the criminal abortion statute, MCL 750.14; MSA 28.204, for allegedly inducing the
abortion of a fetus of approximately twenty-eight weeks, and altering a patient's medical records
in violation of MCL 750.492a(1)(a); MSA 28.760(1)(1)(a). Defendant filed a motion to dismiss
the charge that alleged violation of MCL 750.14; MSA 28.204, arguing that the statute is
unconstitutionally vague, is unconstitutional on its face, and has been repealed by implication,
and that the complaint is defective for failing to allege viability of the fetus or lack of necessity to
preserve the health of the mother.
The district court determined that the complaint was not defective and that the statute was
not unconstitutional on its face, but dismissed the charge on the ground that the statute had been
repealed by implication and was void for vagueness. On the people's appeal, the circuit court
concluded that the district court erred in finding that the statute had been repealed by implication,
but agreed with the district court that the statute was void for vagueness. This Court granted the
people's application for leave to appeal.
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III
Shortly after the United States Supreme Court decided Roe, supra, the Michigan Supreme
Court, in Bricker, supra, addressed the constitutionality of the statute at issue in the instant case.
Rather than declare the Michigan statute unconstitutional as irreconcilable with Roe, the Bricker
Court construed this criminal abortion statute to conform to the dictates of Roe and Doe v Bolton,
410 US 179; 93 S Ct 739; 35 L Ed 2d 201 (1973). The Court said:
Now that the United States Supreme Court has spoken concerning the
constitutionality of state abortion laws, we seek to save what we can of the
Michigan statutes.
The central purpose of this legislation is clear enough—to prohibit all
abortions except those required to preserve the health of the mother. The
Supreme Court now requires other exceptions. They can properly be read into the
statutes to preserve their constitutionality.
* * *
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, 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 life or health of the mother.
* * *
. . . We hold that, except as to those cases defined and exempted under Roe
v Wade and Doe v Bolton, supra, criminal responsibility attaches. [Bricker, supra
at 529-531.]
See also Larkin v Wayne Prosecutor, 389 Mich 533, 537; 208 NW2d 176 (1973), in which the
Court stated that the constitutionality of MCL 750.14; MSA 28.204 "is discussed and decided in
[Bricker], decided this day."
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IV
Defendant argues that MCL 750.14; MSA 28.204, which by its express terms prohibits all
abortions except those necessary to save the mother's life, was impliedly repealed by the
Legislature's subsequent enactment of legislation that regulated, rather than prohibited, abortions.
Defendant argues that the district court properly held that there is a clear conflict because the
subsequent statutes purport to regulate conduct that MCL 750.14; MSA 28.204 makes criminal.
We disagree.
The subsequent legislative enactments defendant relies on are statutes requiring parental
consent,3 informed consent,4 and record keeping,5 providing immunity for those who refuse to
perform abortions,6 prohibiting partial-birth abortions,7 and prohibiting Medicaid funding for
abortions.8
Repeals by implication are not favored and will not be indulged in if there is any other
reasonable construction. Wayne Co Prosecutor v Dep't of Corrections, 451 Mich 569, 576; 548
NW2d 900 (1996). The intent to repeal must very clearly appear, and courts will not hold to a
repeal if they can find reasonable ground to hold the contrary. Id. The presumption is always
against the intention to repeal where express terms are not used, and the implication, in order to
be operative, must be necessary. House Speaker v State Administrative Bd, 441 Mich 547, 562;
495 NW2d 539 (1993), quoting Attorney General ex rel Owen v Joyce, 233 Mich 619, 621; 207
NW 863 (1926) (citation omitted). [T]he Legislature is presumed to act with knowledge of
appellate court statutory interpretations, Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488,
505; 475 NW2d 704 (1991), and . . . silence by the Legislature for many years following judicial
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construction of a statute suggests consent to that construction. Baks v Moroun, 227 Mich App
472, 489; 576 NW2d 413 (1998); Craig v Larson, 432 Mich 346, 353; 439 NW2d 899 (1989).
After Bricker was decided in 1973, the Legislature enacted various statutes regulating the
performance of abortions, see ns 3-8, supra, but did not revise MCL 750.14; MSA 28.204. The
Legislature is presumed to be aware of the Bricker Court's interpretation of MCL 750.14; MSA
28.204, which construction permits abortions to be performed in accordance with Roe. Gordon
Sel-Way, supra at 505; Craig, supra at 353. We think it clear that in enacting those statutes after
Bricker, the Legislature intended to regulate those abortions permitted by Roe and Doe, and
Bricker, and did not intend to repeal the general prohibition of abortions to the extent permitted
by the federal constitution, as construed by the United States Supreme Court. We thus must
reject defendant's argument that MCL 750.14; MSA 28.204 has been repealed by implication.
V
We also must reject defendant's argument that the Bricker Court's discussion of the
constitutionality of the criminal abortion statute was mere dictum because Bricker was not a
physician and therefore none of the constitutional underpinnings of Roe applied.
Black's Law Dictionary (7th ed) defines obiter dictum as "[a] judicial comment made
during the course of delivering a judicial opinion, but one that is unnecessary to the decision in
the case and therefore not precedential (though it may be considered persuasive)." The Michigan
Supreme Court has declared, however, that "'[w]hen a court of last resort intentionally takes up,
discusses and decides a question germane to, though not necessarily decisive of, the controversy,
such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as
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a binding decision.'" Detroit v Michigan Public Utilities Comm, 288 Mich 267, 299-300; 286
NW 368 (1939), quoting Chase v American Cartage Co, Inc, 176 Wis 235, 238; 186 NW 598
(1922). A decision of the Supreme Court is authoritative with regard to any point decided if the
Court's opinion demonstrates "application of the judicial mind to the precise question adjudged,
regardless of whether it was necessary to decide the question to decide the case." People v
Bonoite, 112 Mich App 167, 171; 315 NW2d 884 (1982).
In deciding whether Bricker's pre-Roe conviction under MCL 750.14; MSA 28.204 for
conspiracy to commit an abortion was lawful, the Bricker Court found it necessary to determine
Roe's effect on Michigan's criminal abortion statute. Rather than simply declare that Roe was
inapplicable because Bricker was not a physician,9 the Court squarely addressed the issue
whether Roe and Doe required that Michigan's criminal abortion statute be declared completely
void because it is incapable of constitutional construction, or whether the statute, in accordance
with the dictates of Roe, could be construed to render it constitutional. The Bricker Court, thus,
intentionally discussed and decided a question germane to the controversy—the constitutionality
and scope of the criminal abortion statute after Roe—and this Court must accord that decision
binding effect under Detroit, supra at 299-300, and Bonoite, supra at 171.
Defendant further argues that Roe v Wade, supra, held that "abortion statutes, as a unit,
must fall," and that in every case involving a statute containing language similar to that
considered in Roe, federal courts have struck down the entire statute and have not remanded the
case to a state court for interpretation and limitation. None of the cases relied on,10 however,
involved the state's highest court's construction of the abortion statute at issue as coextensive
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with Roe v Wade, supra. We must accept the Bricker Court's construction of the statute as our
starting point.11 For this reason, defendant's argument must fail.
VI
Defendant argues that MCL 750.14; MSA 28.204 is unconstitutionally vague because the
threat of prosecution against physicians is an undue burden on the rights of women seeking
lawful elective and therapeutic abortions, that the statute fails to provide reasonable notice of
which abortions are prohibited because it defines the prohibited conduct by reference to unclear
and ever-changing constitutional principles, and that the statute is unconstitutionally vague as
construed in Bricker, supra, because it fails to recognize the attending physician's constitutionally
conclusive medical judgment regarding viability or maternal health, fails to specify whether an
objective or subjective standard governs, and fails to include mens rea requirements on these
issues.
As is evident from the dissent's discussion of the merits, defendant raises substantial
constitutional issues.
We must conclude, however, that these arguments cannot insulate
defendant from prosecution in the instant case.
The invariable practice of the courts is not to consider the constitutionality
of legislation unless it is imperatively required, essential to the disposition of the
case, and unavoidable. Thus, a court will inquire into the constitutionality of a
statute only when and to the extent that a case before it requires entry upon that
duty, and only to the extent that it is essential to the protection of the rights of the
parties concerned. [16 Am Jur 2d, Constitutional Law, § 117, p 512-513.]
Due regard for principles of standing, and recognition that declaring a
statute unconstitutional is "'the gravest and most delicate duty that this Court is
called on to perform,'" mandate that, outside the context of the First Amendment,
"one to whom application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as applying to other
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persons or other situations in which its application might be unconstitutional."
[People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), quoting United
States v Raines, 362 US 17, 20-21; 80 S Ct 519; 4 L Ed 2d 524 (1960), quoting
Blodgett v Holden, 275 US 142-148; 48 S Ct 105; 72 L Ed 206 (1927) (Holmes,
J.).][12]
The repeated declarations by the United States Supreme Court that the determination of viability
is a matter for medical judgment, Colautti v Franklin, 439 US 379, 386-389; 99 S Ct 675; 58 L
Ed 2d 596 (1979), overruled in part in Webster v Reproductive Health Services, 492 US 490; 109
S Ct 3040; 106 L Ed 2d 410 (1989), and the fact that fetuses may now become viable long before
a pregnancy reaches twenty-eight weeks, may, indeed, raise issues regarding the application and
constitutionality of the statute as construed in Bricker, in a case where it is charged that the
defendant intervened to abort a pregnancy of less than twenty-eight weeks' gestation.13 These
issues are not presented, however, in the instant prosecution because MCL 750.14; MSA 28.204
as construed in Bricker, supra, clearly reaches the conduct the prosecution contends is involved
in this criminal prosecution.
A
We are unable to agree with the dissent that defendant may resist this prosecution on
constitutional grounds because of deficiencies in the criminal complaint.
Grounded in a defendant's constitutional right of due process of law is the principle that
"[a]n accused shall not be called upon to defend himself against a charge of which he was not
sufficiently apprised." People v Mast, 126 Mich App 658, 661; 337 NW2d 619 (1983), (On
Rehearing), 128 Mich App 613; 341 NW2d 117 (1983).
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We first note that because the district court dismissed the abortion charge against
defendant before the preliminary examination, no criminal information was issued pertinent to
that charge. See MCR 6.112(B), which provides that no information may be filed against a
defendant until a preliminary examination has been held or has been waived, unless the
defendant is a fugitive from justice.
The requirements for a criminal complaint are not the same as for an indictment or
information. MCR 6.101 provides in pertinent part:
(A) Definition and Form. A complaint is a written accusation that a
named or described person has committed a specified criminal offense. The
complaint must include the substance of the accusation against the accused and
the name and statutory citation of the offense.
(B) Signature and Oath. The complaint must be signed and sworn to
before a judicial officer or court clerk.
"The primary function of a complaint is to move the magistrate to determine whether a warrant
shall issue." Wayne Co Prosecutor v Recorder's Court Judge, 119 Mich App 159, 162; 326
NW2d 825 (1982); see also MCL 764.1a(1); MSA 28.860(1)(1).
The requirements for an information are set forth in MCL 767.45(1); MSA 28.985(1),
which provides in pertinent part:
The indictment or information shall contain all of the following:
(a) The nature of the offense stated in language which will fairly apprise
the accused and the court of the offense charged.
(b) The time of the offense as near as may be. No variance as to time shall
be fatal unless time is of the essence of the offense.
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(c) That the offense was committed in the county or within the jurisdiction
of the court.
The test for sufficiency of an indictment is:
"'Does it identify the charge against the defendant so that his conviction or
acquittal will bar a subsequent charge for the same offense; does it notify him of
the nature and character of the crime with which he is charged so as to enable him
to prepare his defense and to permit the court to pronounce judgment according to
the right of the case?'" [People v Weathersby, 204 Mich App 98, 101; 514 NW2d
493 (1994), quoting People v Adams, 389 Mich 222, 243; 205 NW2d 415 (1973),
quoting People v Weiss, 252 AD 463, 467-468; 300 NYS 249 (1937), rev'd on
other grounds 276 NY 384; 12 NE2d 514 (1938).]
An information may be amended at any time before, during, or after trial to cure any defect,
imperfection, or omission in form or substance, including a variance between the information
and the proofs, as long as the accused is not prejudiced by the amendment and the amendment
does not charge a new crime. MCL 767.76; MSA 28.1016; People v Stricklin, 162 Mich App
623, 633; 413 NW2d 457 (1987).
We conclude that the factual allegations in the instant complaint14 were sufficient under
the above standards because they adequately inform of the substance of the accusations. In
addition, the factual allegations provide the basis from which commission of the legal elements
of the charge can be inferred. Any deficiencies in the allegations of the actual charge, such as the
failure to specifically allege that defendant believed that the fetus was viable and that he did not
believe that the procedure was necessary to preserve the health of the mother, can be cured by
amendment.15
B
It is, of course, evident that the statute does not state a mens rea requirement or set forth
an objective or subjective standard for evaluating such a requirement.16
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However, Bricker
construed the statute as encompassing all the constitutional requirements and safeguards
demanded by Roe and Doe, including the need to accord adequate deference to the physician's
exercise of his medical judgment. The statute, as interpreted in Bricker, contemplates deference
to the subjective good-faith medical judgment of the physician. Thus, in the instant case, the
information must allege, and, to convict, the prosecution must prove, that the fetus was twentyeight weeks old and viable, that defendant himself subjectively believed that the fetus was
twenty-eight weeks old and viable, and that defendant, in his own mind, did not hold the
subjective belief or medical judgment that the procedure was necessary to preserve the life or
health of the mother.
In light of Bricker, we reverse the lower courts' dismissal of the charge and remand for
reinstatement of the charge and further proceedings consistent with this opinion. We do not
retain jurisdiction.
M.J. Kelly, P.J., concurred.
/s/ Michael J. Kelly
/s/ Helene N. White
1
MCL 750.14; MSA 28.204 provides:
Any person who shall wilfully 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.
-11-
2
In 1973, the United States Supreme Court held in Roe, supra:
1. 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.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of the
pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest
in the potentiality of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother. [Roe, supra at 164-165.]
3
MCL 722.901 et seq.; MSA 25.248(101) et seq., known as the Parental Rights Restoration Act.
4
MCL 333.17014; MSA 14.15(17014), MCL 333.17015; MSA 14.15(17015), MCL 333.17515;
MSA 14.15(17515).
5
MCL 333.2835; MSA 14.15(2835).
6
MCL 333.20181-333.20184; MSA 14.15 (20181)-14.15(20184).
7
MCL 333.17016; MSA 14.15(17016), MCL 333.17516; MSA 14.15(17516).
8
MCL 400.1 et seq.; MSA 16.401 et seq.
9
The Court stated:
The Court of Appeals, noting defendant is not a physician, concluded that
as to non-physicians, "[t]here is [a] sufficient state interest in both the protection
of the health and safety of a pregnant woman and the protection of [the] society as
a whole from the practice of medicine by persons not licensed as physicians to
justify continued application of the abortion statute to those abortions performed
by non-physicians."
-12-
Unfortunately, this conclusion, though embodying the spirit of the doctrine
of Roe v Wade, infra, takes no note of the constitutional defect in the statute.
[Bricker, supra at 527, quoting 42 Mich App 352, 356; 201 NW2d 647 (1972).]
10
The first case defendant cites, Guam Society of Obstetricians & Gynecologists v Ada, 962 F2d
1366 (CA 9, 1992), addressed the constitutionality of legislation enacted in 1990 declaring all
abortions crimes except cases of ectopic pregnancy and abortions in cases where two physicians
practicing independently reasonably determined that the pregnancy would endanger the mother's
life or gravely impair her health. The court, id. at 1372, struck down the statute as
unconstitutional, rejecting Guam's argument that Roe v Wade has no force after Webster v
Reproductive Health Services, 492 US 490; 109 S Ct 3040; 106 L Ed 2d 410 (1989), Thornburgh
v American College of Obstetricians & Gynecologists, 476 US 747, 814; 106 S Ct 2169; 90 L Ed
2d 779 (1986) (overruled in Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US
833; 112 S Ct 2791; 120 L Ed 2d 674 [1992]), and Akron v Akron Center for Reproductive
Health, Inc, 462 US 416, 452; 103 S Ct 2481; 76 L Ed 2d 687 (1983) (overruled in Casey,
supra).
Defendant also cites Smith v Bentley, 493 F Supp 916 (ED Ark, 1980), which involved various
Arkansas statutes, including one that made it
"unlawful for anyone to administer or prescribe any medicine or drugs to any
woman with child, with the intent to produce an abortion, or premature delivery of
any foetus before or after the period of quickening, or to produce or attempt to
produce such abortion by any other means . . . ." [Id. at 924.]
The Smith court noted that
[t]he statute, by its own terms, applies to "anyone." Ostensibly, the term "anyone"
includes licensed physicians such as the plaintiffs. While dicta in one Arkansas
Supreme Court decision intimates that the application of the statute may be
circumscribed in terms of its application to physicians who perform abortions
prior to the time when the fetus becomes viable, no Arkansas decision expressly
excludes physicians from the statute's prohibitions or delineates the circumstances
which would subject a physician to criminal liability for the performance of an
abortion. [Id. at 925-926.]
The Smith court was referring to May v State, 254 Ark 194, 196; 492 SW2d 888 (1973),
in which the Arkansas Supreme Court concluded that the appellant lacked standing to
challenge the statute's constitutionality and stated that Roe and Doe's effect was to strike
down the prohibition as against physicians during the period preceding approximately the
end of the first trimester. The May court determined that "[t]he cited section can be left
intact as to laymen . . . ." See Smith, supra at 926, n 9, concluding that the quoted
statement "does not rehabilitate the patent facial invalidity [of the statute] in terms of the
statute's application to physicians."
-13-
11
"When a state statute has been construed to forbid identifiable conduct so that 'interpretation
by (the state court) puts these words in the statute as definitely as if it had been so amended by
the legislature,' claims of impermissible vagueness must be judged in that light." Wainwright v
Stone, 414 US 21, 22-23; 94 S Ct 190; 38 L Ed 2d 179 (1973), quoting Winters v New York, 333
US 507, 514; 68 S Ct 665; 92 L Ed 840 (1948).
12
See People v Cavaiani, 172 Mich App 706, 714; 432 NW2d 409 (1988) (noting that a
defendant has standing to raise vagueness challenges to a statute only if the statute is vague as
applied to his conduct; that "[e]ven though a statute may be susceptible to impermissible
interpretations, reversal is not required where the statute can be narrowly construed so as to
render it sufficiently definite to avoid vagueness and where defendant's conduct falls within that
prescribed by the properly construed statute"; and that a person generally lacks standing to
challenge overbreadth where his own conduct is clearly within contemplation of the statute);
People v Williams, 142 Mich App 611, 612; 370 NW2d 7 (1985) (noting that vagueness
challenges to statutes that do not involve First Amendment freedoms must be examined in light
of the facts of the case at hand, and that for a defendant to have standing to challenge a statute as
overbroad, the statute must be "'"overbroad in relation to defendant's conduct."'") (citations
omitted).
13
Defendant's argument that the line between legal and criminal activity is ever changing as the
jurisprudence in this area changes is based on the presumption that the statute and Bricker
automatically operate to permit prosecution whenever prosecution is permissible under the
federal constitution, regardless of whether prosecution would be permitted under Roe and Doe.
The prosecution, however, asserts that it has no such authority, and under Bricker, the legal line
of criminal prohibition is twenty-eight weeks. This is a question that need not be decided in this
case, because this prosecution specifically alleges the termination of a twenty-eight-week
pregnancy.
14
The complaint stated in pertinent part:
With respect to the allegation of records alteration, Complainant has
determined the following to be true upon information and belief:
Defendant is a medical doctor practicing from two clinics, one in Highland
Park, Michigan, the other in Bloomfield Hills, Michigan. Virtually, the exclusive
nature of Defendant's medical practice is performing abortions upon request of
pregnant women. Dr. Higuera maintains a medical file with respect to each
patient whom he has examined. Complainant has been informed by Rebecca
Black, a former employee of Dr. Higuera that it was routine practice for Dr.
Higuera to have one or more ultrasound diagnostic examinations performed on a
woman who requested an abortion. The ultrasound was, in most cases, performed
by Rebecca Black pursuant to her responsibilities as Dr. Higuera's employee.
According to Rebecca Black the ultrasound was used by Dr. Higuera for several
medical purposes, including determination of the age and size of the fetus prior to
-14-
an abortion. A form was routinely filled out which indicated the ultrasound
determination of age of the fetus and said form was maintained in the patient's file
as a standard part of the office keeping practices in Dr. Higuera's clinics.
Complainant is informed that Jane Doe . . . on October 14, 1994 appeared
at Dr. Higuera's office pursuant to an appointment. Ms. Doe indicated that a nurse
(Rebecca Black) performed an ultrasound examination upon her and the
ultrasound revealed that the fetus was 28 weeks old. The nurse then informed
Ms. Doe that it might not be possible to perform the abortion as she had
requested. The nurse further stated, however, that Dr. Higuera had to make the
final determination. Dr. Higuera then entered the examination room and himself
repeated the ultrasound on Ms. Doe. Rebecca Black has informed Complainant
that she observed Dr. Higuera examine Jane with the ultrasound device and saw
that the ultrasound again determined the fetus to be 28 weeks of age; the same
age as the instrument had determined when she had previously performed the test
herself. Rebecca Black filled out the ultrasound reporting form showing 28 weeks
as determined by the ultrasound instrument both when she performed the test and
when Defendant Higuera performed the test and placed that form in her file. Dr.
Higuera then performed a 2-day abortion procedure (described further infra)
terminating the pregnancy of Jane Doe.
Rebecca Black has further informed Complainant that Dr. Higuera
performed abortions on fetuses more than 24 weeks old regularly during the last
year that she worked for him.
Complainant has interviewed Assistant Attorney General Merry A.
Rosenberg assigned to the Attorney General's Health Professionals Division.
Complainant has been advised by Merry Rosenberg that her division received a
complaint from Rebecca Black, who terminated her employment with Dr.
Higuera, indicating the Dr. Higuera was, among other complaints, routinely
performing abortions in the third trimester of pregnancy without a finding of
medical necessity to the mother. Merry Rosenberg indicated to Complainant that
she received the name of Jane Doe from Rebecca Black and, as an Assistant
Attorney General representing the medical licensing board of the State of
Michigan, demanded from Dr. Higuera the medical file concerning his
examination of and abortion upon Jane Doe. Merry Rosenberg also indicated that
Rebecca Black provided a copy of the medical file of Jane Doe which she had
made prior to her termination of employment with Dr. Higuera. Included in the
medical file provided by Rebecca Black was a copy of the ultrasound form
showing 28 weeks as the age of the Jane Doe fetus. When Merry Rosenberg
received the patient file from Dr. Higuera, which she had demanded, there was an
ultrasound form in the file showing the fetus' age to be 24 weeks and there was no
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form in the file indicating the 28 week fetus which had previously been provided
by Rebecca Black.
Complainant is further advised that Merry Rosenberg engaged the services
of Eric and Leonard Speckin, Forensic Document Examiners. Eric Speckin
analyzed the documents which had been provided to Merry Rosenberg by Dr.
Higuera and determined two significant forensic conclusions: First, that the file
had previously contained a 28 week form due to impressions of that form found
engraved into other documents in the file. Second, that the 24 week form, which
was included in the file provided to Merry Rosenberg, was written with ink which
was approximately six months newer than the October 14, 1994 date which
appears on the form. Complainant advises this Court that assuming the
conclusions of Eric Speckin to be true and accurate the 24 week ultrasound form
was prepared after the demand for production of documents filed by Merry
Rosenberg.
* * *
Jane Doe has stated that due to the extremely mild nature of her
pregnancies and ovulation cycle she was not at all aware of the exact stage of her
pregnancy. She wished to have an abortion for purely personal reasons and she
was aware of no medical need supporting an abortion. She recalls the nurse,
Rebecca Black, doing an ultrasound on her and informing her that there was a
problem because she might be too far advanced and then she recalls Dr. Higuera
performing a second ultrasound and informing her that an abortion was possible in
her case. Dr. Higuera advised her that there would be an increase in the cost of
the abortion due to the age of her fetus but did not advise her of what the age was.
Jane Doe advised Complainant that she was further quite surprised when Dr.
Higuera advised her after performing the first stage of a 2-day abortion
procedure that this procedure was capable of inducing labor. Dr. Higuera then
warned Jane Doe that if she went into labor before returning to his clinic the next
day for completion of the abortion process she should not go to a hospital or call
911 emergency service because "they" (the hospital) would deliver a live baby for
her. Jane Doe recalled that she was shocked by this statement because that was
the first indication which she had that her baby was at an age where it could
survive on its own. Jane Doe further advised that she allowed Dr. Higuera to
complete the abortion process on the second day, October 15, 1994, and terminate
her pregnancy.
Rebecca Black has advised Complainant that the procedure used by Dr.
Higuera to cause abortions is the insertion of items known as "laminaria" which
induce abortion in a 2-day procedure. Complainant has been informed by several
experts including Dr. James Gell, M.D., and Dr. Mark Evans, M.D., that absent
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evidence to the contrary, a 28-week old fetus can be expected to survive and
develop normally outside the mother's womb.
In consequence of the above, Complainant states that:
COUNT I
Jose Gilberto Higuera, on or about May 15, 1995, . . . while being a health
care provider, intentionally and willfully, did himself or direct another to place in
a patient's medical chart (to wit: Jane Doe) misleading or inaccurate information
regarding the diagnosis of the patient's condition (to wit: the age and
developmental state of the fetus carried by Jane Doe, contrary to the provisions of
MCL 750.492a(1)(a) [MSA 28.760(1)(1)(a)], and against the peace and dignity of
the People of the State of Michigan
Penalty: Felony, 4 years in prison.
COUNT II
Jose Gilberto Higuera did, on or about October 14 and 15, 1994, while in
the City of Highland Park . . . willfully administer to a pregnant woman (to wit:
Jane Doe) any medicine, drug, substance or thing whatever, or did employ any
instrument or any means whatever with the intent thereby to procure the
miscarriage of the said Jane Doe who was then and there pregnant and carrying a
fetus approximately 28 weeks of age, without there having been a necessity to
perform such procedure to preserve the life of the said woman, contrary to the
provisions of MCL 750.14 [MSA 28.204] . . . . [Emphasis added.]
15
The district court rejected defendant's argument that the complaint was defective, although it
otherwise dismissed the charge on the ground that the criminal abortion statute was
unconstitutionally vague. The court concluded that the complaint was not defective for failure to
allege that the fetus was viable, that the complaint was, however, defective for failure to allege
lack of necessity to preserve the health of the mother, but that the defect did not require dismissal
and could be corrected by a motion to amend by the prosecution.
16
Women's Medical Professional Corp v Voinovich, 130 F3d 187 (CA 6, 1997), relied on by
defendant, involved a statute that specifically set forth a standard that was both subjective and
objective. The statute in Colautti, supra, suffered from a similar infirmity. In Voinovich, supra,
the court, relying, in part, on Colautti, held that the medical necessity and medical emergency
provisions of the Ohio abortion act regulating postviability abortions, Ohio Rev Code Ann §
2919.16(F), were unconstitutionally vague:
We conclude that the medical necessity and medical emergency provisions
are unconstitutionally vague, because they lack scienter requirements. Because
the constitutionality of the post-viability regulations depends upon the
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constitutionality of these two provisions, all of the post-viability regulations must
be struck down.
2. Lack of Scienter Requirement
The term "scienter" means "knowingly" and is used to signify a
defendant's guilty knowledge. Black's Law Dictionary 1345 (6th ed 1990). It
requires that a defendant have some degree of guilty knowledge or culpability in
order to be found criminally liable for some conduct. Statutes imposing criminal
liability without a mental culpability requirement are generally disfavored. See
Staples v United States, 511 US 600, 605-06, 114 S Ct 1793, 1797, 128 L Ed 2d
608 (1994).
The Act's "medical emergency" definition requires the physician to
determine "in good faith and in the exercise of reasonable medical judgment"
whether an emergency exists. Ohio Rev Code Ann § 2919.16(F). Similarly, the
medical necessity exception to the post-viability ban requires that the physician
determine "in good faith and in the exercise of reasonable medical judgment" that
the abortion is necessary. See id. § 2919.17(A)(1). Thus, both of these provisions
contain subjective and objective elements in that a physician must believe that the
abortion is necessary and his belief must be objectively reasonable to other
physicians. This dual standard as written contains no scienter requirement.
Therefore, a physician may act in good faith and yet still be held criminally and
civilly liable if, after the fact, other physicians determine that the physician's
medical judgment was not reasonable. In other words, a physician need not act
wilfully or recklessly in determining whether a medical emergency or medical
necessity exists in order to be held criminally or civilly liable; rather, under the
Act, physicians face liability even if they act in good faith according to their own
best medical judgment. [Voinovich, supra at 203-204. Emphasis added.]
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