[124 NJSuper Page 476] Defendants were indicted on October 23, 1969 for using instruments on a pregnant woman to
commit an abortion, in violation of N.J.S.A. 2A:87-1, and for conspiracy to commit that offense. They now move to dismiss the indictment on the ground that the New Jersey abortion statute is unconstitutional and no longer viable in light of the recent opinions of the United States Supreme Court in Roe v. Wade , 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton , 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).
In Roe plaintiff was a pregnant single woman who sought a declaratory judgment that the Texas criminal abortion statute was unconstitutional and that an injunction issue restraining its enforcement. After finding that she had standing to bring the action the majority of the court concluded that the Texas statute violated plaintiff's right of privacy, whether such right is encompassed within the concept of the Fourteenth Amendment restricting state action and fostering personal liberty, or within the concept of the Ninth Amendment's reservation of rights to the people. This conclusion, however, was qualified by the determination that the state had a correlative interest in regulation of that right.
As a consequence, the court established certain limits or guidelines within which a state may validly regulate abortions because of its "important and legitimate interest in preserving and protecting the health of the pregnant woman." In its holding in Roe , the Supreme Court determined that the Texas statute, which excepts from criminality only a lifesaving procedure on behalf of the mother, was unconstitutional.
Justice Blackmun's synthesis of the court's holding is significant:
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and example of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment
according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be stricken separately, for then the State is left with a statute proscribing all abortion procedures no matter how medically urgent the case. [at 733 of 93 S. Ct.]
In Doe, supra , the Supreme Court set aside certain provisions and restrictions of a modern Georgia abortion statute, finding that some of the requirements therein were unconstitutional as being beyond the scope of legitimate state regulation.
Before entering into a discussion of the impact of the foregoing Supreme Court decisions on the New Jersey statute, it is important to note that all three defendants herein are laymen, having no right or license to practice medicine. Hence, the question presented to the court is whether the Roe and Doe decisions render our criminal abortion statute unconstitutional and no longer viable as applied to laymen indicted thereunder.
The answer to this question has been furnished by the United States Supreme Court in subsequent litigation in Cheaney v. Indiana , 410 U.S. 991, 93 S. Ct. 1516, 36 L. Ed. 2d 189 (1973). In that case the Supreme Court of Indiana had affirmed a conviction of the defendant under its criminal abortion statute, rejecting the contention that the statute was unconstitutional because it deprived a woman of her right of privacy denied equal protection to the poor, and was unconstitutionally vague because of the exception "unless such miscarriage is necessary to ...