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Grand Jury of Kings County, Application of

Supreme Court of New York, Appellate Division

June 30, 1955

Grand Jury of Kings County, Application of

Page 271

[143 N.Y.S.2d 503] Aaron Nussbaum, Asst. Dist. Atty., Brooklyn, Edward S. Silver, Dist. Atty., Brooklyn, for appellants.

Victor J. Herwitz, Asst. Corp. Counsel, New York City, Seymour B. Quel, New York City, on brief, Peter Campbell Brown, Corp. Counsel, New York City, for respondent.

Before NOLAN, P. J., and WENZEL, SCHMIDT, BELDOCK and MURPHY, JJ.

BELDOCK, Justice.

The question for determination on this appeal is whether, with respect to abortions, section 90 of the Sanitary Code of The City of New York has effected a repeal or suspension, within the city, of the State statute which prohibits a doctor from disclosing 'any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity', Civil Practice Act, § 352; this prohibition being hereafter referred to as the 'statutory prohibition'.

Said section 90, so far as relevant, reads as follows: 'It shall be the duty of the * * * superintendent * * * of any hospital * * * in the City of New York and of every physician in said City to immediately [143 N.Y.S.2d 504] notify the Department of Health by telephone of any case of abortion or miscarriage where criminal practice is discovered or suspected.'

Within the city of New York, in which it is applicable, section 90 has all the force and effect of State law. Matter of Bakers

Page 272

Mut. Ins. Co. [Dept. of Health], 301 N.Y. 21, 27, 92 N.E.2d 49, 51.

A violation of section 90 subjects the offender to punishment for a misdemeanor in a criminal action and to prescribed penalties in a civil action, Sanitary Code of City of New York, § 224; Administrative Code of City of New York, § 564-6.0; Penal Law, § 1740.

In order to understand the legal significance of the loose term 'criminal practice' as applied to abortions and as used in section 90, several brief definitions are desirable: Abortions are classified as spontaneous and induced. A spontaneous abortion of pregnancy is one that is caused by some normal or abnormal act of nature, without the intervention of any outside agency. An induced abortion is one that is caused artificially either by the patient herself or by another. When an abortion is thus artificially induced in order to save life, it is known as a therapeutic abortion.

The only type of abortion which is made a 'criminal practice' and unlawful is the abortion which is induced for reasons other than thereapeutic. Penal Law, §§ 80, 81, 82, 1142. All other abortions are deemed to be innocent and lawful.

Based on information and belief that section 90 is being flagrantly violated, in that the doctors have been reporting only a small percentage of the cases in which the abortion or miscarriage has been induced by 'criminal practice', the District Attorney of Kings County Commenced a Grand Jury investigation for the purpose of discovering and punishing criminally: (a) the violators of section 90, (b) the violators of the statutes prohibiting abortions other than spontaneous or therapeutic, Penal Law, §§ 80, 81, and (c) the violators of the statutes prohibiting the manufacture, sale or gift of any medicine, instrument or substance for the purpose of producing the unlawful abortion or miscarriage, Penal Law, §§ 82, 1142.

In aid of such Grand Jury investigation the District Attorney caused to be served upon respondent, the superintendent of the Kings County Hospital, a subpoena requiring him to produce before the Grand Jury 'All papers, folders, charts and hospital records, of any and all persons treated at the Kings County Hospital for ...


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