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COMMONWEALTH v. JACKSON (11/26/73)

SUPREME COURT OF PENNSYLVANIA


decided: November 26, 1973.

COMMONWEALTH
v.
JACKSON, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1971, No. 115, in case of Commonwealth of Pennsylvania v. Augustine Jackson.

COUNSEL

James R. Fitzgerald, for appellant.

No brief submitted for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien and Mr. Justice Nix join in this dissenting opinion.

Author: Per Curiam

[ 454 Pa. Page 430]

The appellant, Augustine Jackson, was convicted by a jury in Allegheny County of committing an unlawful abortion in violation of Sections 718 and 719 of the Act of June 24, 1939, P. L. 872, 18 P.S. §§ 4718-4719. A prison sentence was imposed and Jackson filed an appeal therefrom in the Superior Court.*fn1 Because other appeals were then pending in this Court involving the identical issue, the Superior Court certified Jackson's appeal here.

[ 454 Pa. Page ]

The conviction and judgment of sentence must be reversed. See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973), and Commonwealth v. Page, 451 Pa. 331, 303 A.2d 215 (1973).

It is so ordered.

Disposition

Conviction and judgment of sentence reversed.

Dissenting Opinion by Mr. Justice Roberts:

I am compelled to dissent from the majority's reversal of appellant's conviction. Because this case does not involve the right of a woman to obtain an abortion by a licensed physician, appellant's conduct in aborting another's pregnancy was properly punishable under sections 718 and 719 of the Act of June 24, 1939, P. L. 872, 18 P.S. App. §§ 4718-19 (1973). In my view, these sections continue to prohibit all persons other than licensed physicians from performing abortions.*fn1

[ 454 Pa. Page 431]

Nothing to the contrary appears in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973), or Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739 (1973).*fn2

In the instant case, appellant is not a licensed physician. Nevertheless, in June 1965, she attempted to abort the pregnancy of Georgia Carter. Appellant performed the abortion in her private residence and in the absence of safe procedures or sanitary conditions. As a result, the abortion terminated not only Georgia Carter's pregnancy, but her life as well.

In Roe v. Wade, the United States Supreme Court sought to harmonize important, but conflicting societal interests. A woman's decision to terminate her pregnancy was found to be included within a constitutional right of privacy.*fn3 But her decision and that right

[ 454 Pa. Page 432]

    could not be unrestrictedly exercised. Qualifying this right of privacy were the valid state interests in safeguarding the life of the mother, ensuring proper medical practice, and protecting potential human life. Mr. Justice Blackman, speaking for the Court, emphasized that "[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed." Roe v. Wade, supra at 150, 93 S. Ct. at 725. From this it appears without doubt that the Commonwealth has the power constitutionally to proscribe abortions performed by non-physicians.

A reading of Wade's companion case, Doe v. Bolton, reveals that the major constitutional concern of the Supreme Court was undue state interference with the patient-physician relationship. In Doe v. Bolton, the Court struck down a Georgia statute requiring, inter alia, before a woman could procure an abortion, that her physician's decision to abort receive both the approval of a hospital committee, and, after independent examination, the concurrence of two other physicians. With respect to committee approval, the Supreme Court concluded that "[t]he woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview." 410 U.S. at 197, 93 S. Ct. at 750. The majority likewise believed that the licensing of a physician carried with it a recognition of his ability to render acceptable

[ 454 Pa. Page 433]

    medical advice. "Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice." Id. at 199, 93 S. Ct. at 751. Prohibiting non-licensed physicians, like appellant, from performing abortions certainly does not intrude upon a woman's right of privacy or upon the patient-physician relationship.

[ 454 Pa. Page ]

It cannot be denied that the Constitution permits "[t]he State [to] define the term 'physician,' . . . to mean only a physician currently licensed by the State, and [to] proscribe any abortion by a person who is not a physician as so defined." Roe v. Wade, supra at 165, 93 S. Ct. at 732-33. In Page the two justices who joined the opinion announcing the judgment of the Court did not limit sections 718 and 719 to cover abortions not performed by licensed physicians, but instead opined that the Commonwealth could proceed against nonphysicians "for the lay practice of gynecology and obstetrics."*fn4

In my view, a prosecution for the unlicensed practice of medicine does not adequately vindicate society's interest in safeguarding the health and life of a woman desiring to terminate her pregnancy. Only a complete prohibition of abortions performed by anyone other than a licensed physician will be effective in preventing the deaths of other Georgia Carters and the human suffering caused by illegal abortions.

Sections 718 and 719 are unconstitutional only to the extent they are inconsistent with the holding of the United States Supreme Court in Roe v. Wade.*fn5 To the

[ 454 Pa. Page 434]

    extent these two sections proscribe a non-physician from performing an abortion, they are constitutional.

Accordingly, I would affirm the judgment of sentence of the Court of Common Pleas of Allegheny County.


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