
    PEOPLE v NIXON (ON REMAND)
    Abortion — Physicians and Surgeons — Statutes.
    The criminal abortion statute does not apply to abortions in the first trimester of a pregnancy where authorized by a pregnant woman’s attending physician in exercise of his medical judgment; therefore, a licensed physician’s conviction of performing an abortion within the first trimester is reversed (MCLA 750.14).
    Reference for Points in Headnote
    1 Am Jur 2d, Abortion §§ 9,18, 20.
    Appeal from Bay, John X. Theiler, J.
    Submitted Division 2 February 3, 1972, at Lansing.
    (Docket No. 9579.)
    Decided September 27, 1973.
    Robert S. Nixon was convicted of abortion. Defendant appealed. Affirmed, 42 Mich App 332. The defendant appealed by leave granted to the Michigan Supreme Court which remanded the case to the Court of Appeals with instructions, 389 Mich 809.
    Reversed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.
    
      Denfíeld, Timmer & Seelye (by Clifford W Taylor), for defendant on appeal.
    Before: Danhof, P. J., and T. M. Burns and Van Valkenburg, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   On Remand

Per Curiam.

Defendant, a licensed physician, was found guilty by a jury of the felony of abortion contrary to MCLA 750.14; MSA 28.204. Defendant appealed to this Court and his conviction was affirmed. See 42 Mich App 332; 201 NW2d 635 (1972). Thereafter the Supreme Court assumed jurisdiction over this case and the companion case People v Bricker, 42 Mich App 352; 201 NW2d 647 (1972). On June 20,1973, the Supreme Court, after having rendered a decision in Bricker, remanded this case to this Court "for disposition not inconsistent with the dispositions ordered by this Court [the Supreme Court] in Larkin v Wayne Prosecutor (Beebe v Wayne Prosecutor), 389 Mich 533 [208 NW2d 176] (6-18-73) and People v Bricker, 389 Mich 524 [208 NW2d 172] (6-18-73)”. 389 Mich 809, 810.

The Court in People v Bricker, 389 Mich 524, 527, 529-530; 208 NW2d 174, 175 (1973), held:

"Under the Supremacy Clause we are bound by the decisions of the United States Supreme Court in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), and other cases. Under the principles enunciated therein, our criminal abortion statute (MCLA 750.14; MSA 28.204) cannot stand as relating to abortions in the first trimester of a pregnancy as authorized by the pregnant woman’s attending physician in exercise of his medical judgment.”
* * *
"In light of the declared public policy of this state and the changed circumstances resulting from the Federal constitutional doctrine elucidated in Roe and Doe [Doe v Bolton, 410 US 179; 93 S Ct 739; 35 L Ed 2d 201 (1973) ], we construe § 14 of the penal code to mean that the prohibition of this section shall not apply to 'miscarriages’ authorized by a pregnant woman’s attending physician in the exercise of his medical judgment; the effectuation of the decision to abort is also left to the physician’s judgment; however, a physician may not cause a miscarriage after viability except where necessary, in his medical judgment, to preserve the life or health of the mother.”

Our review of the lower court record reveals that defendant performed the abortion within the first trimester of pregnancy. On the authority of the Supreme Court’s holding in Bricker we are compelled to reverse and discharge defendant.

Reversed.  