Petition for Writ of Certiorari — Spears v. Mississippi

V1- 1528

LE COPY

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

Te: seaerenenes

LEA SPEARS,

Petitioner,

VS

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Mississippi

W. S. MOORE

514 Barnett Building

Jackson, Mississippi 39201

ROLAND C. LEWIS

218 South President Street

Jackson, Mississippi 39201

Counsel for Petitioner

3 Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 814-281-4477

Page

Intvedmotory statement ..........cccccccccccccccces 1

Jurisdictional statement ................e cece ee eees 2

Questions presented for review ................e00 2

EE ticdcunicccducsteedevestwsinnn 4

Reasons for granting the writ .................0005: 6

Dt ctittinebeiicdiiinkkinnwnntaseuanceeods 6

Question One: Did petitioner’s conviction deprive

her of the rights guaranteed to her by the Sixth

Amendment to be confronted with the witnesses

DE chiiestididdbvctiinidbneiiebendenee

Question Two: Is Mississippi’s abortion statute un-

constitutionally vague and overbroad? .........

Question Three: Does Mississippi’s abortion law

constitute an arbitrary invasion of the right of a

woman to determine when to beer offspring, and

doee it violate the fundamental right of a woman

to personal and marital privacy? ...............

eens Cases Cited

Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20

ce ce ceb beeen aeeakeasene 7

Boyd v. United States, 116 U. S. 616 (1886) ........ 14

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,

EP A I Dk oN 6 ck wines bndecdcacesuces 8

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26

ee FC ree ener nnne 7

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13

CED. ccchddkucéenvadbadesessanees 7

Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.

I I. WRF iad Less oda Nia cheiei ckccces 7

Farrington v. Tokushige, 273 U.S. 284 (1927) ...... 15

Griswold v. Connecticut, 381 U.S. 479 (1965) ..15, 17,18

Katz v. United States, 389 U. S. 347 (1967) ........ 14

Loving v. Virginia, 388 U.S. 1 (1967) .............. 15

Meyer v. Nebraska, 262 U.S. 390 (1923) ............ 15

Nelson v. O’Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L.Ed.

et ee SEE i ci ben awrun didbeaadeeenheeeerssses 8

Olmstead v. United States, 277 U.S. 438 (1928) ...... 14

Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.

SEE ine ncdnevewdskuawibenesdaedastiens 7

People v. Belous, 458 P. 2d 194, 80 Cal. Rptr. 354

SEE -cekcunesveanewkerddeentsdesasencied 15, 18, 19, 20

Pierce v. Society of Sisters, 368 U.S. 510 (1925) .... 15

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.

EERE, ES

iii

Schneble v. Florida, 92 S.Ct. 1056 A aa 7

Selinoes v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.Ed.

RN IE kcal Lo de 8

Skinner v. Oklahoma, 316 U.S. 535 (oer 15

Spears v. State, 241 So.2d 148 ...........0.0....0... 2

Spears v. State, 257 So.2d 876 ................000. 1

Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13

Ld 2d 424 (1965) ..... ccc cece cece ccc cnccecece 7

Statutes Cited

SS SE cas hekludl paras dalle Gan deed conchwniice 2

Mississippi Code of 1941, § 2223 .................... 3

Mississippi Code of 1942, 4 2358 .................... 12

Mississippi Code of 1942, § 2359 ................... 13

United States Constitution, Sixth Amendment ... .2, 6, 8

Texts Cited

ae 9

Black’s Law Dictionary .................ccceceece 9

Kenneth W. Graham, Jr., Criminal Law Bulletin, Vol.

SEE aivukcdatuieuds caleous wiadek cehccuauca co 8

Webster’s New Collegiate Dictionary ......... ‘ented 9

Webster’s New International Dictionary of the Eng-

SE ED. SULbcckkendcubebaecvedsaokiecceus 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

PE ienceees

LEA SPEARS,

Petitioner,

VS.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Mississippi

INTRODUCTORY STATEMENT

The petitioner, Lea Spears, respectfully petitions for

a writ of certiorari to review a judgment and order made

by the Supreme Court of Mississippi, unofficially reported

as Spears v. State, 257 So.2d 876. The opinion is ‘‘PER

CURIAM AFFIRMED.’’

Rehearing was denied February 28, 1972.

The Supreme Court of Mississippi affirmed a judgment

against the petitioner entered by the Circuit Court of

Warren County, Mississippi, on July 21, 1971. The peti-

tioner was convicted of the crime of abortion and sen-

_— om

tenced to serve five years in the Mississippi State Peni-

tentiary.

The decision of the Mississippi Supreme Court was

handed down on January 24, 1972. A copy of the judg-

ment is attached and marked Appendix A.

Petition for rehearing was denied, without opinion, on

February 28, 1972. A copy of the judgment denying the

petition for rehearing is appended and marked Appen-

dix B.

A copy of an order permitting the petitioner to remain

at large on bail pending a determination of this petition

is attached and marked Appendix C.

A former opinion involving petitioner’s first conviction

on the same charge is unofficially reported as Spears v.

State, 241 So.2d 148, decided November 9, 1970, by the

Supreme Court of Mississippi, a copy of which is ap-

pended, bound with this petition and marked Appendix

D. A coy of the November 9, 1970 judgment is marked

Appendix E.

JURISDICTIONAL STATEMENT

Petitioner believes this Court has jurisdiction to review

the decision by writ of certiorari by virtue of 28 USC

§ 1257 (3). Petitioner also believes this Court has juris-

diction to review the decision by appeal by virtue of 28

USC § 1257 (1), (2).

QUESTIONS PRESENTED FOR REVIEW

1. Did petitioner’s conviction deprive her of the rights

guaranteed to her by the Sixth Amendment to be con-

fronted with the witnesses against her?

2. Is Mississippi’s abortion statute unconstitutionally

vague and overbroad?

O—————

3. Does Mississippi’s abortion law constitute an arbi-

trary invasion of the right of a woman to determine when

to bear offspring, and does it violate the fundamental

right of a woman to personal and marital privacy?

=<

Mississippi’s Abortion Statute

§ 2223, Mississippi Code of 1941, as amended, provides

as follows:

Any person wilfully and knowingly causing, by

means of any instrument, medicine, drug or other

means whatever, any woman pregnant with child to

abort or miscarry, or attempts to procure or produce

an abortion or misvarriage shall be guilty of a felony

unless the same were done by a duly licensed, prac-

ticing physician:

(a) where necessary for the preservation of the

mother’s life;

(b) where pregnancy was caused by rape.

Said person shall, upon conviction, be imprisoned

in the State Penitentiary not less than one ( 1) year

nor more than ten (10) years; provided, hewever, if

the death of the mother results therefrom, the per-

son procuring, causing or attempting to procure or

cause the illegal abortion or miscarriage shall be

guilty of murder.

2. No act prohibited in paragraph 1 hereof shall

be considered exempt under the provisions of sub-

paragraph (a) thereof unless performed upon the

prior advice in writing, of two (2) reputable licensed

physicians.

3. The license of any physician or nurse a be

automatically revoked upon conviction under the pro-

visions of this act.

—

Cynthia Ivy, suspecting that she was pregnant, went to

a medical laboratory in Jackson, Mississippi, seeking to

verify her suspicion. She gave a urine specimen to a re-

ceptionist, who did ‘not testify. Miss Ivy did not put her

name on the specimen and the receptionist did not write

on the specimen or ask her name. She left the laboratory

after requesting that the results be telephoned to a physi-

cian. She does not know what happened to the specimen

after she left it with the receptionist.

Six days later, she telephoned Dr. Calvin Hull, a physi-

cian at the University Medical Center in Jackson. As a

resuli of the telephone conversation, she decided to seek

an abortion.

She and her roommate drove to Vicksburg in Warren

County, Mississippi, and contacted the appellant on May

21, 1969.

Miss Ivy testified that the appellant exposed her vaginal

orifice with a set of surgical clamps. A rubber tube, ap-

proximately eight inches long was inserted into the va-

gina and secured by cotton packing. The entire procedure

lasted ten or fifteen minutes.

Miss Ivy lost the tube, packing and uterine lining by

vaginal discharge about 6:00 am. on the following morn-

ing, May 22, 1969. She did not go to a physician until

the following Monday. A surgical team drained and

scraped the uterus; however, the technique proved inef-

fectual and a complete hysterectomy was required.

All of the evidence in the case tending to prove that

Miss Ivy was pregnant, other than the fact that she had

missed two periods, was the testimony of Dr. Hull, and

the pathologist who operated the laboratory, that a urine

=

specimen alleged to have been given by Cynthia Ivy indi-

cated that Cynthia Ivy was pregnant.

A medical technologist employed at the laboratory in

Jackson stated that on May 5, 1969, she performed a

Gravindix pregnancy test, which was positive, but she

could not identify the urine specimen upon which she

based her test to have been the urine specimen given by

Cynthia Ivy. She said she performed approximately sev-

enty pregnancy tests per month.

Doctor William P. Featherstone, a pathologist, testified

that in his opinion, the person who gave that urine speci-

men examined by the medical technologist was pregnant;

however, he could not identify the urine specimen on which

the test was based to be that of Cynthia Ivy. Doctor Cal-

vin Travis Hull, Cynthia Ivy’s physician, testified that he

received a telephone message that a test was positive.

Neither physician examined Miss Ivy prior to the alleged

abortion.

The appellant was convicted of the crime of abortion

and an appeal was taken to the Supreme Court of Missis-

sippi, raising the same federal questions sought to be re-

viewed here, by assignment of error and brief. Only one

of the questions was passed upon by the Supreme Court

of Mississippi. The case was reversed and remanded for

another trial on the ground that the appellant was denied

“the basic and fundamental right to be confronted by the

witnesses against her as well as the right of cross-exami-

nation’’ (241 So.2d at 149).

The appellant was again convicted in the Circuit Court

of Warren County and sentenced to serve a term of five

years in the Mississippi State Penitentiary. Another ap-

peal was perfected and the Supreme Court of Mississippi

afirmed, without opinion, on January 24, 1972. The peti-

tioner has exhausted her state remedies.

The Mississippi Supreme Court in this case had decided

a federal question of substance not theretofore determined

by this court and has decided another federal question in

a way probably not in accord with applicable decisions of

this court.

Question One: Did Petitioner's Conviction Deprive Her of

the Rights Guaranteed to Her by the Sixth Amend-

ment to Be Confronted With the Witnesses Against

Her?

This Court held in Pointer v. Texas, 380 U.S. 400, 85 8.

Ct. 1065, 13 L.Ed.2d 923 (1965) that the confrontation

clause of the Sixth Amendment was applicable to the

states through the Fourteenth Amendment.

The petitioner was denied her right to be confronted

with the receptionist who allegedly took the urine speci-

men from Cynthia Ivy. The receptionist’s testimony was

crucial on the issue of petitioner’s guilt.

Unless Cynthia Ivy was pregnant, no crime was com-

mitted. A laboratory technician made an analysis of

someone’s urine and the pathologist testified that the some-

one who gave the urine samples was pregnant. The re

ceptionist was a “witness against” petitioner, but never

Dr. Calvin Hull testified from a report prepared by «

technician based on tests following the alleged abortion.

That technician was also a “witness against” petitioner,

but never confronted her.

—

—7—

The “testimony” of both these absent witnesses was

crucial as to the question of Cynthia Ivy’s pregnancy, and

thus petitioner’s guilt. The error was not harmless.

Schneble v. Florida, 92 S.Ct. 1056 (1972).

It is sometimes impossible to separate the confronta-

tion requirement and the hearsay rule, although they are

not identical. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210,

27 L.Ed.2d 213 (1970). Both physicians in this case testi-

fied from reports not prepared by them from physical evi-

dence not procured by them. Neither report was trust-

worthy. Neither report would be described by Professor

Wigmore as “reliable”. Both were witnesses against peti-

tioner. The testimony of both physicians was based on

hearsay on the very question they were called to answer—

was Cynthia Ivy pregnant?

California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L.

Ed2d 489 (1970) restates that a physical or literal con-

frontation is necessary.

This Court held in Barber v. Page, 390 U.S. 719, 725, 88

8. Ct. 1318, 1322, 20 L.Ed.2d 255 (1968):

“The right to confrontation is basically a trial right.

It includes both the opportunity to cross-examine and

the occasion for the jury to weigh the demeanor of

the witness.”

The jury cannot weigh the demeanor of witnesses the

jury never sees, and an accused cannot cross-examine a

witness who doesn’t take the stand.

Other cases heretofore decided by this Court on the

confrontation clause are Douglas v. Alabama, 280 US.

415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Parker v. Glad.

dem, 385 U.S. 363, 87 S.Ct. 468, 17 LEd 2d 420 (1966);

Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed

2d 424 (1965); Bruton v. United States, 391 U.S. 123, 88

S. Ct. 1620, 20 L.Ed.2d 476 (1968); Selinoces v. Allen, 397

US. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353 (1970); and Nelson

vy. O'Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L.Ed2d 222

(1971).

This Court added by note in Bruton v. United States,

391 U. S. 123, 136, n. 12, ‘‘The reason for excluding this

evidence as an evidentiary matter also requires its ex-

clusion as a constitutional matter.’’

Whether the SIXTH AMENDMENT is waived from

the historical, functional or conceptional viewpoints, or

whether it is more or less than a collection of separate

rights, it is certainly more than Professor Wigmore’s

view of what the hearsay rule ought to be. If the found-

ing parents of our country had any purpose in mind by

the confrontation clause, other than the ratification of

the constitution, that purpose had to be to set minimum

standards for the quality of evidence that will suffice

to carry the constitutional burden of the prosecution to

prove the accused guilty beyond a reasonable doubt and

to a moral certainty. Those minimum standards were

not met here. Kenneth W. Graham, Jr., Criminal Law

Bulletin, Vol. 8, No. 2, p. 99.

There are no waiver questions here; no attempt was

made by the State to justify the absence of the witnesses

against petitioner; the absent witnesses against peti-

tioner were not co-conspirators; no evidence was offered

by the State of any good faith effort to obtain the pres-

ence of the witnesses against petitioner; and there was

no attempt to produce the best evidence available.

Petitioner’s conviction deprived her of the rights guar-

anteed to her by the Sixth Amendment to be confronted

by the witnesses against her,

Question Two: Is Mississippi’s Abortion Statute Uncon-

stitutionally Vague and Overbroad?

Mississippi’s abortion statute places no restrictions on,

nor qualifications for, and in no way attempts to explain

what is meant by a ‘‘duly licensed, practicing physician.’’

The statute does not answer whether an eye, ear, nose

and throat specialist, or a dentist, could perform an

abortion. In Webster’s New Collegiate Dictionary, copy-

right 1960, at page 636, we find the following definition

of a physician:

**(1) A person skilled in physic or the art of heal-

ing; a doctor of medicine; often distinguished from a

surgeon.

‘“*(2) A healer or restorer; as, a physician of the

soul.”*

In the Webster’s New International Dictionary of the

English Language, page 1629, a physician is defined as:

**(1) A natural philosopher, an experimentalist in

physics; a person skilled in physic or the art of

healing; one duly authorized to treat diseases, espe-

cially by medicines; a doctor of medicine; often

distinguished from a surgeon.

“*(2) Hence, one who heals moral or spiritual disease

or infirmities, or the like; as, a physician of the

soul.

“*(3) A student of natural philosophy or physic.”

Black’s Law Dictionary, page 1304, defines physician as:

“‘A practitioner of medicine; a person duly author-

ized or licensed to treat disease; one legally engaged

in the practice of medicine, without reference to any

particular school.’’

Am. Jur. 41, Section 2, defines ‘‘Physicians and Sur-

geons”’ as:

anlliiue

‘*. . . The word ‘physician’ in its narrow sense means

one who is proficient in the art of healing by means

of application of physic or medicine to the patient.

In its broader sense it means any one who practices

the art of healing disease and preserving health, a

prescriber of remedies for sickness and disease .. .

Surgery, as a specialized branch of the art of healing,

is defined as being limited to manual operations, usu-

ally performed by surgical instruments or appliances

by a physician legally qualified and engaged therein.

The special or limited systems or schools of healing

and the practitioners of such systems or schools are

usually defined, both generally and by the statutes,

in terms descriptive of their methods, media or in-

strumentalities used by them to accomplish relief or

to cure the patient. To illustrate, osteopathy has been

defined in rather widely varying terms, but all of the

definitions agree in substance that it is the system of

treatment of certain parts and tissues of the body by

manipulation with the hands, without the use of medi-

cine, drugs, or surgery. The same rule applies to

chiropractic and optometry. A chiropodist is one who

treats disease or malformations of the hands or feet,

especially a surgeon for the feet, hands, or nails; a

cutter or extractor of corns and callouses. Naprapathy

is a drugless system of treating human ailments

by manipulations and is based on an underlying the-

ory that human ailments are due to a tightened or

shrunken condition of a ligament. A Christian Sci-

ence healer treats a disease solely by prayer. Electro-

therapy is defined as the use of different forms of elec-

tric machines for therapeutic purposes. A dentist is

one whose profession is to clean and extract teeth,

repair them when diseased, and replace them when

necessary by artificial ones . . . The question some-

times arises whether a dentist is a physician or sur-

=

geon, as these latter words are used in a statute. The

Courts are not in accord as to this answer .. .”

Petitioner submits that what a physician is, is most un-

clear. The statute fails to establish whether a chiroprac-

tor, Christian Scientist, or a veterinarian are physicians.

Paragraph 2 of the statute is unconstitutionally vague:

‘“‘No acts prohibited by Paragraph 1 hereof shall be

considered exempt under the provision of Sub-para-

graph (a) unless performed upon the prior advice in

writing of two (2) reputable, licensed physicians.”’

Petitioner submits that it is possible that an abortion

might be performed—a legal abortion—upon the advice of

a veterinarian, faith healer and then the actual abortion

being done by a chiropractor. Petitioner submits that if

this is true, then the statute as it now is is unconstitu-

tionally vague.

Petitioner believes that the law—and this includes all

the written statutes—should allude to the benefit of each

and every citizen. Petitioner believes that when the stat-

utes are written in such a fashion that it is impossible to

determine their meaning, so that the general public is

uninformed as to the law, they are unconstitutionally

vague, and should be struck down.

The statute fails to state what is meant by the phrase

“‘duly licensed’’. It is not clear under whose supervision

and under what standards one becomes **duly licensed’’

to perform an abortion.

The statute does not establish in what jurisdiction one

must be licensed. Doctors from other jurisdictions, due

to the statute’s vagueness, would be unable to determine

their standing.

The statute is not clear as to wha’ **practicing’’ physi-

cian means. Petitioner feels that practicing could mean

nifiiivs

any one making a business of healing, such as an intern,

a resident. Practicing may very well exclude research

doctors, retired doctors, and pathologists, since they do

not work with people.

Petitioner cannot ascertain what a ‘‘duly licensed”

physician is.

The statute fails to define what ‘‘when necessary for

the preservation of the mother’s life’’ means. Petitioner

submits that the only way possible to tell ‘whether an

abortion was necessary is to wait and see if the mother

dies; then, in such case, it would have been permissible

for the doctor to have performed an abortion. Petitioner

submits that no criteria exists, to determine the proba-

bility of death.

The next portion of the statute to be considered is part

(b), which reads ‘‘when pregnancy was caused by rape.”’

The statute fails to make a distinction between statutory

and forcible rape. Section 2358 of the Miss. Code of 1942

entitled ‘‘Rape—Carnal Knowledge of the Female Under

Twelve Years of Age, Or, Being Over Twelve, Against

Her Will,”’ reads as follows:

Every person who shall be convicted of rape, either by

carnally and unlawfully knowing a female child under

the age of 12 years, or by forcibly ravaging any fe-

male of the age of 12 years and upward, who shall

have been convicted of having carnal knowledge of

any female above the age of 12 years without her

consent, by administering to her any substance or

liquid which shall produce such a stupor or such im-

becility of mind or weakness of body as to prevent

a sexual resistance, shall suffer death, unless the jury

shall fix the imprisonment in the penitentiary for

life, as it may do in case of murder. In all cases

where the female is under the age of 12 years old,

—_—

it shall not be necessary to prove penetration of the

female’s private parts where it is shown the private

parts of the female have been lacerated or torn in an

attempt to have carnal knowledge of her.

Section 2359, entitled ‘‘Rape—Age of Consent—18

Years’’:

Any male person who shall have carnal knowledge of

an unmarried female person of previously chaste

character younger than himself, and over 12 and under

18 years of age, upon conviction, shall be punished,

either by a fine not exceeding $500.00, or by im-

prisonment in the County Jail not longer than six

months, or by both such fine and imprisonment, or by

imprisonment in the penetentiary not exceeding five

years; and such punishment, within such limitations,

shall be fixed by the Jury trying each case, or by the

Court upon the entry of the plea of ‘“guilty’’.

This means, then, that a young girl below the age of 18

(age of consent) is entitled to an abortion when she be-

comes pregnant. Petitioner feels that such a law could

be abused.

The statute fails to make clear whether the victim’s

statement ‘‘that she has been raped’’ is sufficient to jus-

tify an abortion, or whether a conviction would be neces-

sary. The statute fails to state the procedure, or to

whom, a rape must be reported, to justify an abortion.

Petitioner further submits that the statute is uncon-

stitutionally vague, and that a strict interpretation of this

statute would prevent many of the time-honored and well-

based medical practices now used in our hospitals; for

instance, induced labor. The statute reads:

Any person wilfully and knowingly causing, by means

of an instrument, medicine, drug, or other means

whatever, any woman pregnant with child to abort or

=

miscarry, attempt to procure, or produce an abortion

or miscarriage, shall be guilty .. .

Petitioner submits, then, that if labor is induced, and

if done without the prior advice, in writing, of two

reputable, licensed physicians, as set out in the statute,

and if the baby dies, then the doctor is an abortionist.

If the mother should die, he is a murderer. A doctor

should not have to take this chance.

Question Three: Does Mississippi's Abortion Law Con-

stitute an Arbitrary Invasion of the Right of a

Woman to Determine When to Bear Offspring, and

Does It Violate the Fundamental Right of a Woman

to Personal and Marital Privacy?

The Supreme Court has treated privacy as an essential

right, Boyd v. United States, 116 U. S. 616, 630 (1886).

As early as 1891, the court stated:

“No right is held more sacred, or is more carefully

guarded, by the common law, than the right of every

individual to the possession and control of his own

person, free from all restraint or interference of others

unless by clear and unquestionable authority of law.

As well said by Judge Cooley, ‘The right to one’s

person may be said to be a right of complete im-

munity: to be let alone.’ Union Pacific Ry. v. Bots-

ford, 141 U. S. 250, 251 (1891) (Emphasis added).”

See also, Mr. Justice Brandeis, dissenting in Olmstead v.

United States, 277 U.S. 438, at 478 (1928), (overruled by

Kats v. United States, 389 U. S. 347 (1967)).

Recent years have witnessed an increasing sphere of

personal activity protected from government interference.

There is no longer any doubt that privacy in the sphere

of marriage, family and sex constitutes a fundamental

right. Time and again the Supreme Court has acted to

preserve the freedom, integrity and privacy of the family.

ow 15 —

There is a constitutionally protected right to marry. Lov-

ing v. Virginia, 388 U.S. 1 (1967). There is a constitu-

tionally protected right to direct the instruction of one’s

children. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce

v. Society of Sisters, 368 U.S. 510 (1925); Farrington v.

Tokushige, 273 U.S. 284 (1927). There is a constitutionally

protected right to control of the procreative function free

from unreasonable restriction from the state. Skinner v.

Oklahoma, 316 U.S. 535 (1942).

In Griswold v. Connecticut, 388 U.S. 479 (1965), the

Court, in holding the Connecticut birth control laws un-

constitutional stated that the right to privacy, penumbral

to the First, Third, Fourth, Fifth and Ninth Amendments,

preserves from State interference the right to choose when

to procreate and when not to procreate. This right of

privacy is “no less important than any other right care-

fully and particularly reserved to the people” (at 785).

Most recently, in the case of Belous v. California, the

California Supreme Court stated:

“The fundamental right of the woman to choose

whether to bear children follows from the Supreme

Court’s and this Court’s repeated acknowledgment of

a ‘right to privacy’ or ‘liberty’ in matters related to

marriage, family, and sex.... That such a right is

not enumerated in... the U.S. . . . Constitution is no

impediment in the existence of the right.” 80 Cal.

Reporter 354 (1969).

A comparison of the anti-contraception law involved in

Griswold with the Mississippi Abortion Law, leads to the

conclusions that:

(1) Both statutes invade the intimate realm of marital

and personal privacy;

(2) Both statutes interfere with a couple’s freedom to

control the number and spacing of offspring;

= oe

(3) Both statutes prevent the physician from practic-

ing medicine and giving his best advice to his patients;

(4) Both statutes are in conflict with the solution to

one of the world’s most critical problems today, the

population explosion.

(5) Both statutes are largely unenforceable, neverthe-

less prosecution hangs like a cloud over the medical pro-

fession;

(6) Both statutes discriminate against the poor and un-

educated;

(7) Both statutes involve the imposition of a religious

principle on the entire society.

The essence of the personal freedom impaired by anti-

abortion and anti-contraception statutes is the right to

control the incidence of one’s children. It is not the

means of control, but the power to control which is signi-

ficant to the woman. The mere fact of fertilization should

not ipso facto and co instante abolish or limit the right

of the woman to decide whether to have a child. Under

the Constitution abortion may and should be considered

no more nor less than a back-up or last resort method of

birth control, at least in the first trimester.

The Mississippi Abortion Law attempts to abolish the

individual’s rights at the instant when an ovum is ferti-

lized. Up to that moment the couple has complete free-

dom of choice as to when, whether and how often they

shall produce children. But once fertilization occurs, their

choice ends and they may not—under criminal penalties—

choose not to have a child. Here then is a case of the

Government’s attempt to invade, even abolish—the consti-

tutional right to control the use of one’s own procreative

powers. A more egregious invasion of personal liberty

cannot be imagined.

— 17 —

The case of Griswold, 381 U.S. 479 (1965), involved the

Connecticut birth control law. Appellants, a Planned Par-

enthood League’s executive director and medical director

were convicted of giving information, instruction and

medical advice to married persons as to means of prevent-

ing conception. The Appellants gave information, instruc-

tion and medical advice to married persons as to the means

of preventing conception. They examined the wife and

prescribed the best contraceptive device or material for

her use. Fees were usually charged, although some

couples were serviced free. The statute assailed read as

follows:

‘‘Any person who uses any drug, medicinal article or

instrument for the purpose of preventing conception

shall be fined not less than fifty dollars,’’ ete.

Another section provided:

‘‘Any person who assists, abets, counsels, causes, hires

or commands another to commit any offense may be

prosecuted and punished as if he were the principal

offender. ’’

The appellants were found guilty as accessories and

appealed. The Supreme Court responded and ruled the

statute unconstitutional, and declared at p. 1680:

‘This law, however, operates directly on an intimi-

tate relation of husband and wife and their physici-

an’s roll in one aspect of that relation.’’

The court in Griswold recognizes a peripheral right

guaranteed by the Bill of Rights, namely, that it concerns

the relationship lying within the zone of privacy created

by several fundamental constitutional guarantees. The

court further expounded that involved here was a right

of privacy affecting the basic tenets of marriage, and by

the State of Connecticut for bidding the use of contra-

ceptives there was an invasion of that right of privacy

which could not be countenanced constitutionally. Gris.

wold, as it relates to the instant case, has parallel con-

notations because the prohibition against an abortion, at

least in the early stage of one’s pregnancy when the em-

bryo or the fetus is mere protoplasm and a non-entity, is

no more offensive than planned parenthood, or the con-

sed of poceneation ty ho tagution of cuntenseptive pill

or the use of contraceptive devices. What is basically

involved in this concentrated fact category is the right of

the woman at least in the early stages of her pregnancy

to choose whether or not to bear offspring. This is a fun-

damental right that she possesses since her own body is

involved; since she should have the right to determine

whether or not to have a child at said stage; whether her

health, her mental wellbeing would be affected by having

a child; whether her financial situation warrants her bear-

ing a child; whether or not she should be subjected to the

emotional trauma of bearing and raising a child whose

conception was unwanted or at least is not appreciated.

The command by virtue of the Mississippi Abortion Law

that she must bear this child to fruition constitutes com-

pulsory pregnancy, and makes the woman a slave to her

own body, and a mere vessel for propagation. We con-

clude, therefore, that a woman in the early stages of her

pregnancy has as much right to abort as she has to pre-

vent conception by planned means of whatever kind she

chooses to employ.

This rationale dictated in part the result in the case of

People v. Belous, 458 P. 2d 194, 80 Cal. Rptr. 354 (1969),

wherein that court related:

‘“The fundamental right of the woman to choose

whether to bear children follows from the Supreme

Court’s and this court’s repeated acknowledgment of

a ‘right of privacy’ or ‘liberty’ in matters related to

marriage, family and sex.”’

= =

In Belous the fact situation involved a young unmar-

ried woman who first saw her family doctor who gave her

pills to abort which did not succeed. She then saw the

appointment with the doctor. The defendant then chan-

nelled her to another doctor, and stated that said doctor’s

price would be Five Hundred Dollars. The abortion was

performed by the second doctor. The second doctor impli-

cated the defendant as having sent him the case. The de-

fendant was charged with conspiracy under the California

abortion law. The California statute provided that any-

one who supplied or administered to any woman drugs or

substance, or used any instrument with intent to procure

the miscarriage of such woman, unless the same was nec-

essary to preserve her life, was punishable, etc.

In Belous the medical specialist involved in that case

contended that the statute was vague and indefinite and

not criminally enforceable because it was violative of the

due process clause of the Federal Constitution, and fur-

ther claimed that the vagueness and indefiniteness when

equated with the fundamental right of a woman to choose

whether or not to bear children, invalidated and per-

vaded the entire statute.

population, and 29.1 per one hundred thousand births,

and the court concluded that the critical issue is not

whether such right exists, but does the state have a com-

pelling interest in the regulation of a subject within the

police powers of a state, and also whether legislation im-

pinging on constitutionally protected areas is narrowly

drawn and not of unlimited and indiscriminate sweep.

The court in Belous recognized also that constitutional

concepts are not static, and that the statute which might

have been constitutional in one era might be constitution-

ally tainted in another period in the light of modern

medica] surgical practice. The court in Belous further con-

eluded that the state has no compelling interest in the

protection of the embyro and fetus.

However, basically the court did conclude in Belous,

which constitutes a landmark decision, that the funda-

mental right of a woman to life and to choose whether or

not to bear children cannot be subordinated to an at-

tempt to decipher the loose and vague language which

controlled that California enactment particularly the

legend, ‘‘necessary to preserve life.’’

The petitioner respectfully requests that the decision of

the Mississippi Supreme Court be reversed and, there

being no constitutionally admissible evidence to support

the conviction, that she be discharged.

Respectfully submitted

W. S. MOORE

514 Barnett Building

Jackson, Mississippi 39201

ROLAND C. LEWIS

218 South President Street

Jackson, Mississippi 39201

Counsel for Petitioner

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—*

APPENDIX A

IN THE SUPREME COURT OF MISSISSIPPI

Monday, January 24, 1972, Court Sitting ::::::::

Lea Spears.

46 657

State.

This cause having been submitted at a former day of

this Term on the record herein from the Circuit Court

of Warren County and this Court having sufficiently ex-

amined and considered the same and being of the opinion

that there is no error therein doth order and adjudge

that the judgment of said Circuit Court rendered in this

cause on the 2ist day of July, 1971—a conviction of

ABORTION and a sentence to serve a term of FIVE

YEARS in the State Penitentiary—be and the same is

hereby affirmed. It is further ordered and adjudged that

the State of Mississippi do have and recover of and from

the appellant and J. W. Mullins and Mrs. V. R. Deaton,

sureties on the appeal bond herein, all of the costs of

this appeal to-be taxed for which let proper process issue.

MINUTE BOOK ‘‘BP’’, PAGE 494.

Monday, February 28, 1972, Court Sitting ::::::::

Lea Spears.

46 657 vs.

State.

This cause this day came on to be heard on the petition

for a rehearing filed herein and this Court having sufii-

ciently examined and considered the same and being of

the opinion that the same should be denied doth order

and adjudge that said petition be and the same is hereby

denied.

MINUTE BOOK “‘BP’’, PAGE 517.

—_Y

APPENDIX C

IN THE SUPREME COURT OF MISSISSIPPI

Monday, March 6, 1972, Court Sitting ::::::::

Lea Spears.

46 657 vs.

State of Mississippi.

ORDERED Lea Spears is granted bail pending the

filing of a petition for a Writ of Certiorari in the Supreme

Court of the United States and a ruling on said petition

by said Court provided she files the petition for a writ

of certiorari within ninety days of January 24, 1972,

bond in the sum of $30,000.00 already having been posted

with the Clerk of this Court under date of January 27,

1972,

MINUTE BOOK “BP”, PAGE 597.

APPENDIX D

IN THE SUPREME COURT OF MISSISSIPPI

NO. 45,961

LEA SPEARS,

V.

STATE OF MISSISSIPPI

PATTERSON, JUSTICE:

Mississippi Constitution, Article 3, Bill of Rights, sec-

tion 26 (1890) provides in part as follows:

In all criminal prosecutions the accused shall have

a right to be heard by himself or counsel, or both, to

demand the nature and cause of the accusation, to be

confronted by the witnesses against him, to have com-

pulsory process for obtaining witnesses in his favor,

and, in all prosecutions by indictments or information,

a speedy and public trial by an impartial jury of the

county where the offense was committed. .. . (Em-

phasis added.)

The appellant was tried and convicted of the crime of

abortion in the Circuit Court of Warren County. One of

the essentials of the crime is pregnancy.

During the course of the trial two doctors introduced

as witnesses for the State were permitted to testify that

the State’s prosecuting witness was pregnant. One of

the doctors stated that his opinion of pregnancy was based

solely upon the laboratory report of his technician; that

he had not examined the State witness. The other doctor

also testified from a laboratory report made by a labora-

tory technician though he had on one occasion, in an emer-

7

COPY BOUND CLOSE IN CENTER

*

so

gency situation subsequent to the alleged abortion, per-

sonally examined the State witness.

The laboratory technicians were not offered as wit-

nesses. The doctors’ testimony, though sworn, was merely

a reiteration of that which had been related to them by

unsworn witnesses. This was hearsay evidence [Dennis

v. Prisock, 221 So.2d 706 (Miss. 1969); Hill v. Stewart,

209 So.2d 809 (Miss. 1968); City of Laurel v. Upton, 253

Miss. 380, 175 So.2d 621 (1965); and Wild v. Bass, 252

Miss. 615, 173 So.2d 647 (1965)] which denied the defend-

ant the basic and fundamentai right to be confronted

by the witnesses against her as well as the right of cross-

examination. This was error of major proportion, requir-

iu the case to be reversed and prompting the statement

that it is more the duty of the State’s prosecutor to safe-

guard the constitutional rights of a defendant than to seek

conviction without them.

We find no merit in the other assignments of error.

REVERSED AND REMANDED.

. ETHRIDGE, C.J., AND RODGERS, JONES,

BRADY, INZER AND SMITH, JJ., CONCUR.

ROBERTSON, J., AND GILLESPIE, P. J.,

DISSENT.

ROBERTSON, JUSTICE, DISSENTING:

I respectfully dissent. If admitting the testimony of

Dr. William P. Featherston, an acknowledged expert and

specialist in the field of pathology, and also a co-owner

of the Bratley-Featherston Medical Laboratory, was error,

then in my opinion it was harmless error.

The State’s prosecution witness was a nineteen-year

old young lady. It was she who became pregnant and it

was she on whom the abortion was performed. She was the

accuser. The defendant was confronted with her accuser

eaiiniass

and the accuser was subjected to a es and rather

cruel cross-examination.

The accuser testified in detail as to how she knew she

was pregnant. There was no doubt in her mind that she

was pregnant, and there was no doubt in the mind of the

defendant who performed the abortion and was paid

$150.00 cash for performing it.

The testimony of Dr. William P. Featherston and Dr.

Calvin Hull was pure surplusage. Pregnancy had already

been proved by the testimony of the victim herself. The

State’s evidence, exclusive of the doctors’ testimony, met

the burden on the question of pregnancy. The defense of

the appellant was that she did not know, had not seen,

and had nothing whatsoever to do with the prosecuting

witness, The defense was not based in any way on whether

or not the prosecuting witness was pregnant.

I would call attention to the fact that Dr. Featherston

had at the trial his official office file specifically labeled

with the name of the prosecution witness alone. He re-

ferred to it in his testimony and never did appellant ask

to see the file and its contents. Dr. Featherston testified

that the pregnancy test was made in his office, by a trusted

employee, under his supervision and control.

Ordinarily, Bratley-Featherston Medical Laboratory

never sees the patients. Specimens and samples are for-

warded to them from all over the state by the patient’s

own doctor, and the written report is sent to that doctor.

It just so happened in this case that the patient went

directly to the Medical Laboratory.

With reference to official business records this Court

as far back as 1908 in the case of Grenada Cotton Gom-

press Company v. William Atkinson, 94 Miss. 93, 47 So.

644 (1908), had this to say:

Pe Faas C|h 41a Ft eee tk eS SSeS

— a

‘We give our approval to the admirable statement

of the modern rule contained in Wigmore on Evi-

dence, § 1530. It is there said: ‘The conclusion is,

then, that where an entry is made by one person in

the regular course of business, recording an oral or

written report, made to him by one or more other

persons in the regular course of business, of a trans-

action lying in the personal knowledge of the latter,

there is no objection to receiving that entry under

the present exception, provided the practical incon-

venience of producing on the stand the numerous per-

sons thus concerned would in the particular case out-

weigh the probable utility of doing so. Why should

not this conclusion be accepted by the courts? Such

entries are dealt with in that way in the most im-

portant undertakings of mercantile and industrial life.

The are the ultimate basis of calculation, investment,

and general confidence in every business enterprise;

nor does the practical impossibility of obtaining con-

Stantly and permanently the verification of every

employee affect the trust that is given to such books.

It would seem that expedients which the entire com-

mercial world recognize as safe should be sanctioned,

and not discredited, by courts of justice. When it is

a mere question of whether provisional confidence can

be placed in a certain class of statements, there can-

not profitably and sensibly be one rule for the busi-

ness world and another for the courtroom. The mer-

chant and the manufacturer must not be turned away

remediless because methods in which the entire com-

munity places a just confidence are a little difficult

to reconcile with technical judicial scruples on the

part of the same persons who, as attorneys, have al-

ready employed and relied upon the same methods.

In short, courts must here cease to be pedantic and

endeavor to be practical.’’’ 94 Miss. at 100-101, 47

So. at 646.

_

In holding that hospital records were properly admitted

into evidence in the case of City of Bay St. Louis v. Huey

P. Johnston, 222 So. 2d 841 (Miss., 1969), we quoted with

approval from 6 Wigmore, Evidence (3rd ed. 1940),

§ 1707, p. 36, the following:

*‘The medical records of patients at a hospital,

organized on the usual modern plan, deserve to be

placed under the present principle. They should be

admissible, either on identification of the original

by the keeper, or an offer of a certified or sworn

copy. There is a Necessity (ante, § 1421); the call-

ing of all the individual attendant physicians and

nurses who have cooperated to make the record even

of a single patient would be a serious interference

with convenience of hospital management. There is

a Circumstantial Guarantee of Trustworthiness (ante

§ 1422); for the records are made and relied upon in

affairs of life and death. Moreover, amidst the day-

to-day details of scores of hospital cases, the

physicians and nurses can ordinarily recall from ac-

tual memory few or none of the specific data entered;

they themselves rely upon the record of their own

action; hence to call them to the stand would ordi-

narily add little or nothing to the information fur-

nished by the record alone . . .’’ 222 So.2d at 844.

We very plainly state in Rule 11, Rules of the Supreme

Court of Mississippi:

“No judgment shall be reversed on the ground of

misdirection to the jury, or the improper admission or

exclusion of evidence, or for error as to the matter of

pleading or procedure, unless it shall affirmatively ap-

pear, from the whole record, that such judgment has

resulted in a miscarriage of justice.’’ (Emphasis

added.)

—A9—

Inferentially this Rule is stating that trial judges have

wide latitude in the admission or exclusion of evidence,

and this is as it should be. They are there on the ground,

and can observe the jury in the box and the witness on

the stand.

Rather than it affirmatively appearing from the whole

record that the judgment has resulted in a miscarriage of

justice, it very clearly appears from the whole record in

this case that the decision of the jury and the trial judge

was just and correct and about the only decision that a

jury of reasonable people could reach.

I would have affirmed the judgment of the jury and

the trial court under our harmless error rule.

GILLESPIE, P. J., JOINS IN THIS DISSENT.

tion and a sentence to 10 years in the State Penitentiary—

be and the same is hereby reversed and remanded It is

further ordered and adjudged that the County of Warren

do pay the costs of this appeal to be taxed.

MINUTE BOOK “BP”, PAGE 214