Thus, although the Court avoided a direct confrontation with the issue resolved by the Court of Appeals by construing Roe v Wade as delimiting the Michigan, as well as the federal, constitutional rights involved, the Court agreed with central points on which the Court of Appeals had based its decision. On remand from our Supreme Court for disposition consistent with its decisions in Larkin v Wayne Prosecutor, 389 Mich. 533; 208 N.W.2d 176 (1973), and Bricker, the Court of Appeals in People v Nixon (On Remand), 50 Mich. App. 38, 39-40; 212 N.W.2d 797 (1975), reversed its initial decision affirming the defendant doctor's conviction, because he had performed the abortion within the first trimester of pregnancy. In Larkin v Wayne Prosecutor, 389 Mich. 533; 208 N.W.2d 176 (1973), decided on the same day as Bricker, our Supreme Court recognized the state's interest in protecting the life of an unborn, viable child.
It follows that such destruction cannot constitute murder or other form of homicide, whether committed by a mother, a father (as here), or a third person. The Supreme Court of Michigan interpreted Wade in this manner in Larkin v. Cahalan (1973) 389 Mich. 533 [ 208 N.W.2d 176], where the court limited the scope of a manslaughter statute to the destruction of a viable unborn child. The Michigan statute read: "`. . . The wilful killing of an unborn child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.'"
The Michigan Supreme Court has given Roe a more restrictive reading. In Larkin v Wayne Prosecutor, 389 Mich. 533; 208 N.W.2d 176 (1973), one of the issues presented was whether Roe rendered MCLA 750.322; MSA 28.554, assaultive abortion, invalid. The challenged statute reads:
[ Bricker, supra at 529-531.] See also Larkin v Wayne Prosecutor, 389 Mich. 533, 537; 208 N.W.2d 176 (1973), in which the Court stated that the constitutionality of MCL 750.14; MSA 28.204 "is discussed and decided in [ Bricker], decided this day." IV
The Supreme Court further declared in a companion case to Bricker, "Our duty is to read the Michigan act to be consistent with the Federal Constitution, if such interpretation can be made without doing violence to the language used by the Legislature." Larkin v Wayne Prosecutor, 389 Mich. 533, 541; 208 N.W.2d 176 (1973). The Larkin Court also stated, at 542, "By reason of Roe v Wade, we are compelled to rule that as a matter of Federal constitutional law, a fetus is conclusively presumed not to be viable within the first trimester of pregnancy."
(Emphasis supplied.) Larkin v Wayne Prosecutor, 389 Mich. 533, 541-542; 208 N.W.2d 176 (1973). Second, the "born alive" rule is an archaic legal fiction which no longer serves a legitimate objective.
Thereafter the Supreme Court assumed jurisdiction over this case and the companion case People v Bricker, 42 Mich. App. 352; 201 N.W.2d 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 N.W.2d 176] (6-18-73) and People v Bricker, 389 Mich. 524 [ 208 N.W.2d 172] (6-18-73)". 389 Mich. 809, 810.
Cf. United States v. Vuitch, supra. But see Henrie v. Derryberry, supra; Larkin v. Wayne Prosecutor, 389 Mich. 533, 208 N.W.2d 176 (1973). As a result, the Court concludes that a three-judge court need not be convened.
Fla. Stat. Ann. §§ 782.09(5) (homicide) (defining “unborn quick child” in terms of viability), 782.071 (vehicular homicide) (2007); Ind.Code Ann. §§ 35–42–1–1(4) (murder), 35–42–1–3(a)(2) (voluntary manslaughter), 35–42–1–4(b), (d) (involuntary manslaughter) (2011) ( see also Ind.Code Ann. § 35–42–1–6 (feticide) (2011)); Md.Code Ann., Crim. Law § 2–103 (Supp.2011); Mich. Comp. Laws Ann. § 750.322 (2004) (a “quickening” manslaughter statute that, subsequent to Roe v. Wade, the Michigan Supreme Court limited to post-viability criminal acts, Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176 (1973)) ( see also Mich. Comp. Laws Ann. § 750.90a et seq. (2004)); R.I. Gen. Laws § 11–23–5 (2002) (defining “quickening” in terms of viability). A few states have created other age requirements.
See State v. Knapp, 843 S.W.2d 345 (Mo. 1992), State v. Holcomb, 956 S.W.2d 286 (Mo. Ct. App. 1997), State v. Rollen, 133 S.W.3d 57 (Mo. Ct. App. 2 003). Fla. Stat. Ann. §§ 782.09(5) (homicide) (defining "unborn quick child" in terms of viability), 782.071 (vehicular homicide) (2007); Ind. Code Ann. §§ 35-42-1-1(4) (murder), 35-42-1-3(a)(2) (voluntary manslaughter), 35-42-1-4(b), (d) (involuntary manslaughter) (2011) (see also Ind. Code Ann. § 35-42-1-6 (feticide) (2011)); Md. Code Ann., Crim. Law § 2-103 (Supp. 2011); Mich. Comp. Laws Ann. § 750.322 (2004) (a "quickening" manslaughter statute that, subsequent to Roe v. Wade, the Michigan Supreme Court limited to post-viability criminal acts, Larkin v. Cahalan, 208 N.W.2d 176 (Mich. 1973)) (see also Mich. Comp. Laws Ann. § 750.90a et seq. (2004)); R.I. Gen. Laws § 11-23-5 (2002) (defining "quickening" in terms of viability). Nev. Rev. Stat. Ann. § 200.210 (2006) (manslaughter); Wash. Rev. Code Ann. § 9A.32.060(1)(b) (2012) (manslaughter); Wis. Stat. Ann. § 940.04(2)(a) (2005) (intentional destruction of the life of an "unborn quick child") (see also Wis. Stat. Ann. §§ 939.75(1) (defining "unborn child"), 940.01(1)(b) (first-degree intentional homicide), 940.02(lm) (first-degree reckless homicide), 940.05(2g) (second-degree intentional homicide), 940.06(2) (second-degree reckless homicide), 940.08(2) (homicide by negligent handling of a dangerous weapon, explosives, or fire), 940.09(1)(c), (cm), (d), and (e) (homicide by intoxicated use of a vehicle), 940.09(lg)(c), (lg)(cm), (lg)(d) (homicide by intoxicated use of a firearm 940.10(2) (homicide by negligent operation of a vehicle 940.04(1) (intentional destruction of the life of an unborn child) (2011)).