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State v. Norflett

Decided: May 8, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BETTY NORFLETT, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Pashman, J.

Pashman

[67 NJ Page 272] This appeal requires us to consider the impact of 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), upon our abortion statute in

the context of a criminal conviction of a layman performing an abortion upon an unmarried minor. We conclude that defendant's conviction must be affirmed.

Betty Norflett was indicted on three counts charging her with performing an abortion without lawful justification, atrocious assault and battery by reason of the abortion, and contributing to the delinquency of a minor. Defendant moved for dismissal of the indictment on the grounds that the New Jersey abortion statute was unconstitutional which motion was denied.

The State's principal witness, the victim of the abortion, was a 17-year-old high school student when the procedure was performed. She testified that she had gone to a physician's office for a pregnancy test in December 1972 and while she was waiting to see the doctor defendant approached her asking if she was there for a pregnancy test.*fn1 When the witness responded in the affirmative, defendant replied that she was the one to see if the witness did not want the child. Later, in the doctor's office, defendant came in and gave her a piece of paper with her name and address on it. Following the examination which confirmed the witness's pregnancy, defendant offered her a ride home, and in the car told her to call that night to make further arrangements.

The witness and defendant ultimately agreed on a fee of $100 for the abortion, half of which the witness paid defendant in advance.*fn2 The abortion was attempted on the following Wednesday at the witness's brother's apartment; after the procedure, defendant only told the witness to drink hot liquids and take aspirin. The witness subsequently paid an additional $25 in two installments. When she expressed concern

about whether the abortion was successful, defendant agreed to repeat the procedure.

On Friday of the next week, defendant again attempted to abort the witness, this time at defendant's residence. The witness observed blood on the following day but experienced no further difficulty until early January, when she began to bleed again. The bleeding continued, and finally on a Friday in mid-January, the witness's discomfort became so acute that she was forced to leave her supermarket job early.*fn3 Fearful of her parents' reaction to the abortion, however, the witness told her father that she was suffering from constipation. She continued the deception when she was examined at a hospital that evening and, consequently, the witness was sent home after receiving a prescription.

The next evening, however, the pain became so severe that the witness could not lie down or sit down and she finally told her mother the truth.*fn4 The witness was immediately taken to the hospital where her condition was diagnosed as a possible incomplete septic abortion. She was given large doses of penicillin and then a dilation and curetting of the uterine cavity was performed, resulting in the removal of a 12-14 week old fetus.*fn5 The witness was confined to the hospital

for three days and subsequently missed two months of school.

At the close of the State's case, the trial court dismissed the count of the indictment charging defendant with atrocious assault and battery on the ground that the evidence failed to establish a prima facie case. The court, however, declined to grant defendant's motions for acquittal on the other two counts.

Defendant elected to testify on her own behalf. Although she admitted that she had spoken to the witness in December 1972, she denied performing the abortion or having any knowledge about it. According to defendant, the witness came to her home seeking her help as a community worker. When she learned that the witness was pregnant, defendant claimed that her only advice was to tell her mother and go to Planned Parenthood. The defense stipulated that defendant is neither a physician nor a nurse. On cross-examination she admitted that she had never had any medical training whatsoever, not even a first aid course.

The jury convicted her on both remaining counts of the indictment.

The defense moved for a new trial in October 1973 on the ground that the verdict was against the weight of the evidence, contrary to law and a manifest denial of justice. The court denied the motion and sentenced defendant to a term of 3-5 years on the abortion count and a term of 1-3 years on the count charging her with contributing to the delinquency of a minor. The sentences were to be served concurrently at the New Jersey Correctional Institution for Women.

While the matter was pending unheard in the Appellate Division, we certified the appeal directly to this Court pursuant to R. 2:12-1, 67 N.J. 105 (1975), to consider the propriety of defendant's prosecution and conviction under our abortion statute in light of Roe and Doe, supra.

I

Defendant has consistently argued that our abortion statute, N.J.S.A. 2A:87-1*fn6 has been invalidated completely as a result of Roe and Doe, supra, and Y.W.C.A. v. Kugler, 342 F. Supp. 1048 (D.N.J. 1972), vacated and remanded, 475 F.2d 1398 (3 Cir. 1973), judgment reinstated, Civil No. 264-70 (D.N.J. July 24, 1973), aff'd mem., 493 F.2d 1402 (3 Cir. 1974), cert. den., 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885 (1974). Thus, she contends that her prosecution and conviction pursuant to the statute were improper. The State, in addition to denying the validity of her contentions on their merits, questions the standing of this defendant to raise these constitutional issues.

Defendant's attack on N.J.S.A. 2A:87-1 is essentially twofold. Relying on Roe, Doe and Kugler, she, seeking to assert the constitutional right of pregnant women to obtain abortions, advances the defense that the statute is unconstitutional in toto and is impermissibly vague. While we entertain serious doubts that this defendant has standing to raise these issues,*fn7 we decline to resolve this appeal on procedural

grounds in the belief that the public interest requires us to consider the impact of Roe and Doe upon our abortion statute, at least insofar as it is applied to abortions performed by individuals without medical training. See Busik v. Levine, 63 N.J. 351, 363-64 (1973), appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).

The United States Supreme Court has recognized that the question of the legality of abortions is an issue of constitutional dimensions. In two cases decided the same day, the Court sought to reconcile the conflict between the individual's right to privacy in deciding to terminate a pregnancy and the state's interest in promoting maternal health and prenatal life. In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the Court considered a constitutional attack on the Texas abortion statute by, among others, a single woman who desired to terminate her pregnancy by a "'competent, licensed physician, under safe, clinical conditions'", 410 U.S. at 120, 93 S. Ct. at 710. The statute under attack was, in the Court's view, similar to those in existence in a majority of the states, and made it a crime to "'procure an abortion'" as defined by the statute "except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.'" 410 U.S. at 117-18, 93 S. Ct. at 709.*fn8

In striking down the Texas statute, the Court chose to rest its decision on the individual's privacy rights in making her election as to the abortion. Conceding that the Constitution does not explicitly recognize any right of privacy, the Court nonetheless concluded that:

The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and ...


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