# Petition for Writ of Certiorari — Spears v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1556%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 409 U.S. 1106 ## Text 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 A is Eze. Y» sve Rhee OR RE - ww ERIM TE WNT P ee) Re wate Ap f, tikes ek OL i ¥ = $s -. 4% = + et he > 8 3 iss os ee oe 4 = 4.) = Se . Cle ee te P tas, Soa da heatecas oy MaESa ey eee ent al Ak eal —* 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1556%3A1. Public record. Not legal advice.