State v. Ingel

Orth, C. J., delivered the opinion of the Court. This appeal - concerns the constitutionality of Code, Art. 43, § 139, which designates as misdemeanors certain acts relating to the termination of human pregnancy: 1 We hold: ⁵¹⁷ (1) the provision of the section that the specified acts are crimes if done “other than by a licensed physician” is not constitutionally proscribed; (2) the provision of the section that the acts are crimes if done “other than ... in a hospital accredited and licensed by the State Board of Health and Mental Hygiene” is unconstitutional on its face. The basis of our holdings is the dictates of Roe v. Wade, U. S. 93 S. Ct. 705 , and Doe v. Bolton, U. S. 93 S. Ct. 739 , 2 each decided 22 January 1973, and which, according to Roe , at 733, are to be read together. Whether our holdings govern the disposition of the case before us depends upon how Roe and Doe are to be applied to criminal prosecutions. 3 We hold further: (3) the dictates of Roe and Doe are fully retroactive with respect to Code, Art. 43, § 139 (a).

Therefore our holding that the provision of § 139 (a), designating certain acts as crimes if done other than in a hospital accredited and licensed by the State Board of Health and Mental Hygiene is unconstitutional on its face, applies to and is dispositive of the case here reviewed. The result is that we affirm the order of the Circuit Court of ⁵¹⁸ Prince George’s County passed 12 April 1973 concerning ERMO P. INGEL. 4 I The order of 12 April 1973 was issued in a post conviction proceeding initiated by Ingel. On 16 December 1971 he came on for trial in the Circuit Court for Prince George’s County in Criminal Appeals No. 14,786 under a warrant charging he had violated the abortion laws, Code, Art. 43, § 139. A ' verdict of guilty was rendered upon his plea of guilty, 5 and on 31 January 1972, according to the docket entries, he was sentenced “to the jurisdiction of the Department of Correction for a period of 1 year.

Sentence to incarceration is suspended and the Defendant is placed on probation under the Department of Parole and Probation for an indeterminate period of time.” 6 On 25 January 1973 Ingel moved to vacate the judgment. The court below refused to consider the motion because the relief prayed was properly to be sought under post conviction procedures. Code, Art. 27, § 645 A. Ingel filed a petition for post conviction relief on 8 February. He alleged that the statute under which he was convicted was unconstitutional in the light of Roe v. Wade, supra, and Doe v. Bolton, supra.

Upon hearing in the Circuit Court for Prince George’s County, Couch, J., believed that the statute was unconstitutional and passed the order, which we now affirm, that the plea of guilty be stricken and ⁵¹⁹ that the sentence imposed be vacated and set aside. The State applied for leave to appeal. Code, Art. 27, § 645-1; Maryland Rules BK45 c and BK46. We granted the application and ordered the case to be transferred to the regular appeal docket under procedures in conformity with Chapter 1000 of the Maryland Rules of Procedure.

Rule BK47. Two questions were presented: (1) whether Code, Art. 43, § 139 was unconstitutional under Roe and Doe and (2) whether Roe and .Doe have retroactive application. II We give the reasons for our holdings regarding Code, Art. 43, § 139. 7 (1) The Requirement as to a Licensed Physician The opinion of the Court in Roe held: “The State may define the term ‘physician’, ... to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.” 93 S. Ct. at 732-733. This conclusion was arrived at upon consideration of constitutional rights.

Thus, the “licensed physician” 8 provision of the Maryland statute is constitutionally permissible. If other than a licensed physician performs the acts set out in Code, Art. 43, § 139 (a), he has committed a misdemeanor and upon conviction is subject to the punishment authorized by § 139 (b). ⁵²⁰ (2) The Requirement as to a Hospital Accredited by the Joint Commission for Accreditation of Hospitals and Licensed by the State Board of Health and Mental Hygiene Doe dealt with procedural requirements contained in the Georgia Criminal Code, §§ 26-1201 through 26-1203, formulated by Georgia Laws, 1968 Session, 1249, 1277-1280. That statute required, among other conditions, as does the Maryland statute, 9 that, for an abortion to be authorized or performed as a non-criminal procedure, it take place in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals. § 26-1202 (b) (4). (i) Doe held flatly that the JCAH accreditation requirement “. .. does not withstand constitutional scrutiny in the present context.

It is a requirement that simply is not ‘based on differences that are reasonably related to the purposes of the Act in which it is found.’ Morey v. Doud, 354 U. S. 457, 465 , 77 S. Ct. 1344, 1350 , 1 L. Ed. 2d 1485 (1957).” This holding is dispositive with respect to the JCAH accreditation requirement of the Maryland Act. (ii) Roe held that a state criminal abortion statute 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. 93 S. Ct. at 732. It then established limits of regulation, idem: “ (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its ⁵²¹ 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.” Doe held that the requirement of the Georgia statute that an abortion must be performed in a hospital was invalid “because it fails to exclude the first trimester of pregnancy. . . .” 93 S. Ct. at 749. Because the Maryland criminal abortion statute contains a like requirement, it too is invalid for the same reason. We point out, however, that the Court in Doe explicitly expressed no opinion “on the medical judgment involved in any particular case, that is whether the patient’s situation is such that an abortion should be performed in a hospital rather than in some other facility.’’Idem. It observed: “Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications.

The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests.” Idem. ⁵²² Ill Because Roe and Doe were actions for declaratory and injunctive relief, the question of retroactivity was not before the Supreme Court. We are faced with the issue, however, in order to dispose of the case before us, and as we have indicated, we hold that the dictates of Roe and Doe are fully retroactive. Broadly speaking, the Supreme Court has decided that some of its holdings are to be given fully retroactive effect, that others apply where the convictions have not become final, and that others are to be applied prospectively.

It has viewed the retroactivity or nonretroactivity of such decisions as a function of three considerations. These were summarized in Stovall v. Denno, 388 U. S. 293 , 297: “The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” It said in Desist v. United States, 394 U. S. 244 , 249: “Foremost among these factors is the purpose to be served by the new constitutional rule.” When the purpose involved the reliability of the fact determining process of guilt or innocence, the Court accorded full retroactivity to the decision, without regard to the other two criteria. 10 The ⁵²³ rationale of those decisions which accord full retroactivity to a holding clearly requires that a conviction based upon an unconstitutional statute not be permitted to stand no matter when obtained. A declaration that a statute prescribing conduct to be criminal is unconstitutional goes even beyond a question of the reliability of the fact determining process of guilt or innocence. The conduct unconstitutionally proscribed is not a crime; a conviction under it is not merely erroneous, it is illegal, and should not be the cause of punishment.

Ex Parte Siebold, 100 U. S.