356 Mass. 98

April 9, 1969 - June 2, 1969

Suffolk County


Use of the undefined word "unlawfully" in G. L. c. 272, Section 19, dealing with abortions does not render Section 19 unconstitutionally vague. [99]

Upon a petition to review a decision by the Board of Registration in Medicine revoking the petitioner's registration as a physician, where it appeared that at the hearing before the board evidence of pleas of guilty by the petitioner in court to charges of performing an abortion in violation of G. L. c. 272, Section 19, had been admitted without objection and that the petitioner had presented no facts to refute applicable grounds for revocation of registration set forth in c. 112, Section 61, or to show that he had lawfully performed the abortion, it was held that the petitioner had no standing to raise the question of the constitutionality of one of the requirements of a lawful abortion, and that the pleas of guilty justified the board's decision. [100]

PETITION for review filed in the Superior Court on June 14, 1968.

The case was heard by Hudson, J.

Henry H. Silverman for the petitioner.

Edward W. Hanley, III, Assistant Attorney General, for the respondent.

WILKINS, C.J. This petition is to review a decision of the respondent board of registration in medicine which revoked the petitioner's registration as a physician. In the Superior Court a final decree affirmed the board's decision. The petitioner appealed.

At the hearing before the board there was evidence (1) that the petitioner had pleaded guilty in the Superior Court to two counts in the form provided in G. L. c. 277, Section 79, charging

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him with performing an abortion (G. L. c. 272, Section 19) [Note 1], and (2) that he was placed on probation for three years. No objection was made to the admissibility of this evidence.

The petitioner, after his admission of violation of Section 19, made no effort to present facts which might avoid his being adjudged "guilty of deceit, malpractice, gross misconduct in the practise of his profession, or of any offence against the laws of the commonwealth relating thereto," all of which are grounds for revocation of his license. G. L. c. 112, Section 61 (as amended through St. 1963, c. 241, Sections 2, 3). The petitioner instead chose to rest his case upon the chance of successfully challenging the validity of Section 19.

Before us the petitioner argues that the use of the word "unlawfully" renders Section 19 unconstitutionally vague, because there is no definition of what is unlawful. He cites no authority which supports this contention. The broad contention that the statute is void for vagueness lacks support in the authorities. See, for example, Commonwealth v. Daniel O'Connell's Sons, Inc. 281 Mass. 402; Commonwealth v. Carpenter, 325 Mass. 519; Alegata v. Commonwealth, 353 Mass. 287; Connally v. General Constr. Co. 269 U.S. 385; Lanzetta v. New Jersey, 306 U.S. 451; Thornhill v. Alabama, 310 U.S. 88; Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77; Comment, Legislation -- Requirement of Definiteness in Statutory Standards, 53 Mich. L. Rev. 264; Collings, Unconstitutional Uncertainty -- An Appraisal, 40 Cornell L. Q. 195; Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of Pa. L. Rev. 67.

We are of opinion that any uncertainty has been made sufficiently definite by decisions of this court. In our cases it has been stated over the years that a physician may lawfully perform an abortion if he acts in good faith and in an honest belief that it is necessary for the preservation of

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the life or health of the woman. Commonwealth v. Sholes, 13 Allen, 544, 558. Commonwealth v. Brown, 121 Mass. 69, 76-77, 82. Commonwealth v. Nason, 252 Mass. 545, 551. Commonwealth v. Corbett, 307 Mass. 7, 12. Commonwealth v. Wheeler, 315 Mass. 394, 395. Commonwealth v. Brunelle, 341 Mass. 675, 677-678.

As another indication of vagueness as well as a violation of the due process and the equal protection clauses, the petitioner refers to the requirement introduced in Commonwealth v. Nason, supra, that the doctor's judgment correspond "with the average judgment of the doctors in the community in which he practises." Commonwealth v. Wheeler, supra. Commonwealth v. Brunelle, supra. Compare Brune v. Belinkoff, 354 Mass. 102. The petitioner has demonstrated neither the existence of any peril to the woman nor his good faith in performing the abortion, both of which are fundamental to exoneration. Commonwealth v. Brown, supra. Commonwealth v. Wheeler, supra, 396-397. Therefore, he is unaffected by any defect in the Nason test and has no standing to raise any question concerning it. Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 390. Peterson, petitioner, 354 Mass. 110, 114.

The pleas of guilty were enough to justify the decision of the board.

Decree affirmed.


[Note 1] Section 19 provides: "Whoever, with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her or, with the like intent, unlawfully uses any instrument or other means whatever, or, with like intent, aids or assists therein, shall . . ." be punished.