Brunelle (see
Commonwealth
v.
Brunelle,
A second Superior Court judge, who presided at trial (the trial judge) reaffirmed the denial of the motion to dismiss. A jury found Brunelle guilty. He appealed. The case is before us under G. L. c. 278, § § 33A-33G, on assignments of error based on rulings both of the motion judge and of the trial judge.
The jury could have found the following facts. On May 1, 1969, the young womаn went with two friends to Brunelle’s house in Chelmsford. She was pregnant and desired an abortion. She had been “upset” but was not mentally ill or emotionally disturbed. Brunelle told her that he would perform an abortion, “a D & C” (dilation and curettage), and that the operation “was illegal, and ... no one should be told about it.” He said that “he would insert certain instruments into her” and that “a complete abortion would be performed.” The young woman lay on an examining table and Brunelle inserted the instruments into her vaginal area. She “felt them . . . being inserted.” Afterward he gave her some medication and told her that she “had completely aborted.” A male friend of the young woman paid Brunelle $600. *9 Later that evening the young woman was examined by a physician at a suburban hospital. He found “several.. . fragments . . . lying free in the vagina” and reported that she was passing “small amounts of blood.” He concluded, however, that an abortion had not taken place. She had further treatment at another hospital.
1. At the hearing on the motion to dismiss before the motion judge, Brunelle’s counsel in effect conceded that Brunelle (аlthough “the possessor of a medical doctor’s degree”) was not “a licensed practitioner.” The assistant district attorney asserted that Brunelle was not a licensed physician in Massachusetts or any State. In any event, the motion to dismiss did not allege Brunelle to be a licensed physician, and the evidence at trial tended to show that he was not licensed.
In this prosecution under c. 272, § 19, Brunelle had the burden of coming forward with evidence that he, in some circumstances, might have (a) a defence or justification for acting in apparent violation of the broad prohibition in § 19 (as, for example, showing, that he had a license to practice medicine in Massachusetts; see G. L. c. 278, § 7) and (b) the benefit of an exception from criminal liability under c. 272, § 19 (under prior judicial decisions such as
Kudish
v.
Board of Registration in Medicine,
2. Where one performing an abortion “is not a physician the mere proof of his act ordinarily would be sufficient to estаblish its unlawfulness.”
Commonwealth
v.
*10
Brunelle,
3. Brunelle is not in a position now to assert that a statute, valid in its application to an abortion not performed by a licensed physician, is unconstitutional merely because of contentions that (as applied to a licensed physician in like circumstances) it might or wоuld be unconstitutional. “A statute may be unconstitutional as applied to some states of fact, but constitutional as applied to others.”
Bowe
v.
Secretary of the Commonwealth,
4. In the circumstances, it was within the discretion of the trial judge to refuse to put special questions to prospective jurors in addition to those questions required by G. L. c. 234, § 28.
Commonwealth
v.
Ricard,
5. In the course of his charge, subject to Brunelle’s exception, the trial judge stated that the “intent and purpose” of G. L. c. 272, § 19, “is to prevent attempts to destroy unprotected human beings in the womb of the mother.” Brunelle contends that this statement, not only was inaccurate, but also was prejudicial as bringing into the case an “emotionally charged” issue about which many sincere and conflicting views are entertained. The statute was first enacted over 125 years ago (St. 1845, c. 27). Although the legislative рurpose does not appear from the legislative documents in the State Archives, at least one reason for its enactment may have been the desire to protect women from the risks of what was then а dangerous surgical procedure. 9
*12
A judge may inform a jury about the legislative purpose of a statute, if he does so accurately. See
Commonwealth
v.
Sansone,
6. After deliberating for four and one-half hours, the jury asked the judge for further instructions on two issues. The judge answered these questions and the jury conferred for about an hour more. The jury then again appeared beforе the judge (we assume at his request). He suggested that they were perhaps having difficulty agreeing upon a verdict and read them the charge in
Commonwealth
v.
Tuey,
Judgment affirmed.
Notes
General Laws c. 272, § 19, rеads: “Whoever, with intent to procure the miscarriage of a woman . . . unlawfully uses any instrument or other means whatever, or, with like intent, aids or assists therein, shall ... be punished . . .
The motion alleged c. 272, § 19, to be unconstitutional (1) as expressing in a statute a “solely moral judgment peculiar to one religion,” (2) as “not suited to achieve any valid legislative” purpose in view of the absence of evidence that medically supervised miscarriagеs constitute a threat to health, (3) that the statute goes beyond protecting against dangers to the public health, safety, or morals, (4) that, on moral grounds, the statute “interferes with the free exercise of [a] doctоr’s medical judgment and with the rights of the patient to health and happiness,” (5) that § 19 “discriminates against poor people” who cannot afford to retain physicians and psychiatrists, forcing them “to resort to . . . untrained, сriminal abortionists,” (6) that it compels citizens “to complete an unwanted pregnancy,” (7) that § 19 invalidly proscribes freedom of speech concerning abortions, (8) that § 19 imposes “cruel and unusual punishment,” (9) that it violatеs the right of privacy and freedom of choice in “the area of private morality,” and (10) that § 19 is “arbitrary and vague.” See, however,
United States
v.
Vuitch,
On this subject the motion judge gave one medical expert from New York, who testified оn December 10, 1969, substantial leeway to testify about the restraints imposed by G. L. c. 272, § 19, upon “the free exercise of . . . [his] medical judgment in prescribing for . . . patients.”
Brunelle’s counsel submitted an extended offer of proof cоncerning the expected testimony of certain theological witnesses, not permitted to testify. These included the Right Reverend Anson Phelps Stokes, Episcopal Bishop of Massachusetts; Rabbi Sanford Seltzer of Brook-line; Dr. Robert West, President of the Unitarian Universalist Association; the Reverend Edward Wright, Jr., Acting Dean of Students, Harvard Divinity School; the Reverend Armand Morissette, Rector of St. Jean the Baptist Church, Lowell; Rabbi David Feldman; Algernon D. Black, Senior Leader of the New York Society for Ethical Culture; and Professor Joseph Fletcher of the Episcopal Theological School, Cambridge. Each of these witnesses was prepared to testify, among other things, (a) in effect that the principles expressed in c. 272 § 19, concerning abortion were in substantial conflict with religious, moral, and sociological views entertained by them, their respective corеligionists, and others, and (b) that § 19 was a serious obstacle to advising persons turning to them for pastoral or professional advice.
See discussion in Am. Law Inst., Model Penal Code (Tent. Draft No. 4, April 25, 1955), § 1.13 (2), pp. 7, 108-114; (Proposed Official Draft, May 4, 1962), §§ 1.12, 3.02. See also
Kadis
v.
United States,
We need not discuss the very different considerations which apply to the acts of a licensed physician. See
Commonwealth
v.
Wheeler,
The requirement of registration is constitutionally valid.
Fogland
v.
Board of Registration in Medicine,
We also need not consider whether other persons, such as a licensed physician or a pregnant woman seeking an abortion would have standing to seek declaratory or other relief concerning the constitutionality of § 19. See e.g.
Sturgis
v.
Attorney Gen.
Thе statute was passed at a time when the causes of infection (and appropriate precautions to prevent it) were not well understood. See
Commonwealth
v.
Parker,