On certification to Superior Court, Somerset County, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Burling and Ackerson. For affirmance -- Justices Heher, Oliphant and Wachenfeld. The opinion of the court was delivered by Burling, J.
This matter comes before us on certification granted upon the application of the State to review an order of the Law Division of the Superior Court, Somerset County, discharging an order to show cause why the respondent, Lillian Del Gobbo Vince, should not be ordered to answer certain questions propounded to her while a witness before the Somerset grand jury. The facts are not in dispute.
On June 10, 1948, the respondent, a married woman who had separated from her husband a short time previously, was admitted to a hospital in Somerville with a high fever and an infected vagina. As a result of the history given by her and of a phyiscal examination, the attending physician determined that an abortion had been performed upon the respondent at a time when she was eight to ten weeks pregnant, although the child had not yet quickened. The same physician had examined respondent on May 14, 1948, at which time he had diagnosed probable pregnancy of five or six weeks duration. Respondent was subsequently interrogated in the County Prosecutor's office, at which time she stated that a criminal abortion had been performed upon her by two persons.
On September 21, 1948, respondent appeared before the grand jury of Somerset County in compliance with a subpoena directed to her and there was propounded to her a series of questions relating to her pregnancy and the commission of an abortion upon her. She refused to answer on the ground that the answers might tend to incriminate her. The Prosecutor then filed a petition with the Law Division of the Superior Court and obtained an order to show cause why she should not be compelled to answer the questions propounded or, upon her refusal, be adjudged guilty of contempt. On the return of the rule the respondent advanced the proposition that she was entitled to the privilege of refusal to answer upon the ground that the answers might tend to incriminate or tend to disgrace her. On December 22, 1948, the court below rendered an opinion deciding that the respondent should not be compelled to answer on both grounds and ordered the rule discharged. We granted certification upon the petition of the State because the questions involved were of great public importance. Rule 1:5-3(b).
The issue thus squarely presented is whether a woman upon whom an abortion is allegedly performed is privileged to refuse to answer material and relevant questions propounded to her while a witness, basing such refusal upon the ground that such answer might tend to incriminate or degrade her. The respondent's refusal in the instant case was justifiable if either of the two grounds advanced are sound. Parenthetically it may be noted that, of necessity, the refusal based upon the first ground involves only the question of a woman upon whom an abortion has been performed while the second ground is broader and is applicable to any witness.
No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty. R.S. 2:97-7. We need not enter into a discussion of the common law rule in view of the mandate of the statute except to note that the statute is merely declaratory of the common law. Fries v. Brugler, 12 N.J.L. 79, 82 (Sup. Ct. 1830). This privilege, while existent at the common law is a creature of the public policy of this State and
is not required by the Fourteenth Amendment to the Constitution of the United States. Adamson v. California, 332 U.S. 46, 54, 67 Sup. Ct. 1672, 91 L. Ed. 1903, 1910 (U.S.S. Ct. 1947). The privilege against self-incrimination contained in the Fifth Amendment to the Constitution of the United States only applies to the federal government and not to the individual states. Adamson v. California, supra; Twining v. New Jersey, 211 U.S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97, 112 (U.S.S. Ct. 1908). Nor is a similar provision to be found in the Constitution of this State. Respondent's contentions that her constitutional rights were infringed are therefore without merit.
Respondent would only be justified in claiming the privilege against self-incrimination if, as a result of her testimony, she might be prosecuted for a violation of the criminal laws of this State. It becomes necessary, therefore, to ascertain what prosecution, if any, could ensue as a result of answers to the propounded questions. It is apparent that the only possible crimes with which respondent might be charged are common law abortion, abortion under R.S. 2:105-1 and conspiracy to commit abortion. The common law crime of abortion is not committed unless the mother be quick with child. A review of common law authorities is unnecessary in view of the discussion of Mr. Chief Justice Green in State v. Cooper, 22 N.J.L. 52 (Sup. Ct. 1849). Since respondent was not quick with child at the time of the alleged abortion she cannot be indicted for the common law crime or for conspiracy to commit common law abortion and any claim of privilege grounded upon the supposition that she can be so indicted is without merit.
Following the decision in State v. Cooper, supra, the Legislature, in 1849, adopted the act of March 1, 1849, Nix. Dig. 177, § 103. This statute, with some few alterations not here material, subsists today as R.S. 2:105-1, and reads as follows:
"Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall:
"a. Administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, ...