*1 22, 1972.] 15866. In Bank. Nov. No. [Crim. PEOPLE, Plaintiff Appellant,
THE BARKSDALE, W. Defendant Respondent. ROBERT *4 Counsel Jr., General, Hinz, As A. Chief J. Edward Attorney
Evelle Younger, General, James, General, Attorney E. Assistant sistant William Attorney Granberg, O'Brien, B. Kirk and Derald E. Dep Edward P. Charles R. General, Plaintiff uty Attorneys Appellant. Hassard, Girard, Garrett, Ludlam,
Musick, D. James E. Robert Peeler & Huber, Hassard, W. Lawrence Kessenick & Howard Bonnington, Rogers F. Curiae behalf Plaintiff Appellant. and James Amici on Kemp Mintz, B. Mintz, Giller, and Morton W. Mintz Himmelman & Herman Goldstein Defendant Respondent. Wirin, Lucas, Pat Okrand,
A. Barbara Ashley Phillips, L. Fred Roy Levinson, Rowen, Bradford, Kowitz, Leavy, Klein & Joan K. Zad Leavy, Charles, R. F. Laurence G. Alan Johnson C. Norma Zarky, Montgomery, Marson, Hatter, Halvonik, J. Jerome Charles C. Terry Paul N. Sperber, Rothschild, Brandel, Williamson, B. Levine, J. Roland E. Roblin August Jr., Judith of Defendant G. as Amici Curiae behalf Kleinberg Respondent. McAllister, Brandlin, Trinkaus, J. E. Ryan, Ray J. James E.
Walter R. Duff, Jones, Andrews, Andrews, F. Richard G. Thaxter & John Logan, *5 Curran, as Amici Golden, and William Kennedy McDevitt Martin R. & Curiae.
Opinion a licensed WRIGHT, C. J. seek to physician The prosecute People 1967, ch. (abortion). (Amended Stats. Penal Code section 274 violation of Abor the the 3.) At constitutionality issue § 25950-25954.)1 Code, (Health Act. & Saf. §§ tion California has authorized traditionally abortions in limited circumstances. Under the of the terms abortions became readily enactment more available where administrative determinations of the existence supported by We are with circumstances. thus confronted not the question rather, but, the whether state should or must allow abortions whether current satisfies which it legislation various constitutional tests against must measured. We hold that it does in so dispose part cause accordingly. indicated, Safety
1Unless otherwise all citations are to Health Code. complaint a violation of Penal Defendant’s demurrer to charging People Code section 274 sustained The was by magistrate. appealed dismissal, department from order following appellate for further court reversed and certified the cause superior appellate Court, Proc., rule Civ. See also Cal. Rules (Code 911. proceedings. § 63(a).) been defendant For review it has our purposes stipulated was is a that the charged per- licensed surgeon, physician (13 weeks) formed of the woman’s first trimester during Com- and that it was not in a accredited Joint by the hospital performed required under mission on Accreditation of or in as any Hospitals, hospital, (§ 25951, (a)). no advance legislation current We assume that subd. made of a medical abortion was committee hospital staff as no reference thereto was contained in stipulation.
Penal Cede “Every section as amended provides; person woman, who any or administers to or provides, any procures supplies, medicine, substance, any woman take or uses or employs any drug, instrument or with other means whatever intent thereby procure woman, Abor- miscarriage such in the provided except Act, 25950) tion with of Division Section Chapter (commencing Code, state the Health and Safety punishable imprisonment prison than two five less nor more than years.” Act Therapeutic Abortion authorizes licensed and sur- physicians
geons perform abortions in accredited if the hospitals abortion is ap- proved advance aby staff, hospital’s committee is to be established and maintained in accordance with the standards promulgated Joint by Commission on Accreditation of Hospi- (§ tals. 25951.) The committee never consist of fewer than two li- censed physicians and and a surgeons committee of three “if is required *6 the proposed termination of will pregnancy occur after the 13th week. . . (§ .” 25953.) Unanimous consent is where the required committee consists no more than 25951, three (§ members. subd. We (b).) will consider a later further of the provision statute which states: “In event no shall the be termination the week approved [by after the 20th committee] (§ 25953.) pregnancy.”
Prior to an for approving an the must application abortion find that is a substantial risk “[t]here that continuance of the pregnancy would gravely the impair or health the physical mental mother” (§25951, subd. (c)(1)), or that resulted from or pregnancy rape “[t]he 25951, (§ incest” (c)(2)). subd. be health,” gravely must find will the committee “mental
The term that ground, if it termination approves continued by pregnancy impaired to dangerous the woman is to the extent that defined “mental illness is in need of supervision, of others or or to the or herself property person “mental than 25954.) defining that rather (§ It thus or restraint.” appears im- deemed constitute define what is to to language health” the purports of this language. the We will later consider impact mental health. paired abortion for an an may Before the committee approve application incest, from rape application reasons resulting of pregnancy determination and a for evaluation attorney to the submitted district resulted pregnancy cause to believe the existence of probable a court 261, 285.) Code, Procedures (Pen. or incest. §§ rape from district an determination by adverse review are following provided 25952.) (§ attorney. 274,
Penal Cede section
between
language substantially unchanged
1850 and
forbade
abortions
when necessary to
except
preserve
life of the woman. In
we
language
concluded that
was not
of a clear
with
intent.
meaning consistent
susceptible
legislative
(People v. Belous
(1969)
327 hold, considered, that the We fetuses for reasons hereinafter embryos. be abortions not Abortion Act enforced may prohibit Therapeutic for that within the limits state conceded of regulation, falling proper claimed reason need resolve issues right those raised privacy.
Defendant contends that various Abortion provisions Act are so cannot be enforced. ambiguous constitutionally they act statute either of an doing which forbids requires
“[A] so guess terms men common vague necessarily intelligence at its as to violates the first essential differ its meaning application, process Co. (Connally (1926) due of law.” v. General Construction 269 322, U.S. 385, 126]; Board 328, Cramp 391 46 see also v. L.Ed. S.Ct. [70 285, 292, 278, Public Instruction (1961) L.Ed.2d 368 U.S. 287 [7 347, 275]; City (1964) 82 S.Ct. Bouie v. Columbia U.S. 351-352 378 894, 898-899, 1697]; People McCaughan (1957) L.Ed.2d 84 v. S.Ct. [12 409, 974].) 414 is not certainty P.2d Where requisite [317 on face be may statute satisfied deficiency apparent (United (1947) “common States v. Petrillo understanding practices” 1, 1883, United 1877, 1538]; 332 U.S. 8 Roth v. L.Ed. 67 S.Ct. see [91 1511, 476, 1498, 1304]) (1957) 354 L.Ed.2d S.Ct. States U.S. 491 77 [1 “or from technical or common law any established demonstrably 786, (1960) (In re Newbern 792 language question” 364, 116]). inevitable that there will P.2d it is Cal.Rptr. Although [3 be (Nash “some v. United matter involved most statutes degree” penal 1232, 1235, 780]), States 229 U.S. L.Ed. S.Ct. [57 to a “stricter standards of permissible statutory vagueness applied having (Smith statute effect” fundamental rights potentially inhibiting 205, 210, (1959) 361 U.S. L.Ed.2d 80 S.Ct. [4 California Instruction, 215]; see Cramp also v. Board Public 368 U.S. 285, 292-293]). 287-288 L.Ed.2d While the basic standard against statutes must measured for constant, is a vagueness with which vigor that standard is applied with varies the determination whether a constitutionally protected right is involved. We have heretofore concluded that two rights such are raised in the decision to seek an However, seen, abortion. as will be at least two provisions Act are so that we imprecise would be to conclude that compelled they even impermissibly vague were no areas of constitutional involved. protection
The almost universal ground which committee of an upon abortion has been is on a granted that there “is finding substantial risk
328 or physical gravely impair continuance pregnancy 25951, means (§ (c)(1).) subd. “Risk” health of the mother.” mental de loss, or “Hazard; disadvantage, injury, danger; peril; exposure 1948, un (2d ed. New Internat. Dict. (Webster's . . .” struction. i,s imaginary; as “not or seeming defined “Substantial” in abridged).) part value, the like illusive; real; in or amount, true . . . considerable established; (Webster's . . .” New Internat. . . . based firmly solidly its a term and supra). We have recognized Dict., it is relative .that Ry. v. (Atchison etc. Co. must be from circumstances. drawn 1].) King's Co. Water Dist. (1956) 144 P.2d In Cal.2d [302 contention that case we resolve defendant’s phrase instant need not that, alone, it suffers consti so standing “substantial risk” is ambiguous we to establish if deem the tutional infirmities for Even vagueness.3 phrase nevertheless probability we are of impairment, a measure proper degree what impairment unable for which follow to ascertain reasons in order to “gravely impair” result a continuance of from statutory language reasons the a health. For these abortee’s prospective is void for vagueness. worse; value, means to “make to diminish
“Impair” in excel quantity, lence, or strength.” “Gravely” means “in a or serious manner.” grave (Webster's Dict., New Internat. supra.) a woman’s Certainly pregnant 3Qualifying words like “reasonable” may may or “substantial” not add cer tainty Belous, People 954, 970.) (See contexts. v. They make more particularly certain what is proscribed in circumstances where already is conduct engaged criminal one is course upon nature. When a of con criminal, duct clearly aggravation by which is the nature of the which the law degree may measures the the crime defined words. such qualifying such In the wrong-doer grounds vagueness instances complain cannot heard to as on void-for-vagueness upon the essential element which doctrine rests—the lack of (See Note, of proscribed lacking. fair notice conduct—is itself Void-For- Vagueness 67.) Supreme (1960) 109 is Doctrine In the Court U.Pa.L.Rev. Such greater upon robbery expose the case of one embarked who himself robbery accomplishment if “sub penalty stantially movement of his victim necessarily present increased the risk harm above in the over and (People robbery of 897, Cal. crime itself." Daniels Cal.2d 'hand, 677].) Rptr. On the in the other P.2d A.L.R.3d case, language attempts separating proscribed conduct instant which line draw danger on proscribed otherwise protected from conduct which is either ous or not “sub ground “reasonable” or depend when words such as qualifying it must In beyond conduct becomes criminal. proper line which stantial” define the Belous, proscribed sufficiency language instance, contemplated “ reasonably’ necessary preserve life except ‘substantially or abortions where “may mother,” in other contexts qualifying words that while the and concluded case im objections, instant process due in the certainty and avoid other add (71 uncertainty.” merely increase the of such words would plication Vagueness what is lack of notice of fair not in such instance on the predicated criminal. otherwise setting conduct in a where the proscribed is not what *9 would be health if her impaired death were to result from gravely preg- and it cannot be denied death associ- that there is a rate nancy, significant ated with childbirth.4 a During early stages pregnancy, hospital is four to six is times safer the woman than bearing preg- Health, to nancy term. Public Fourth Annual on the (Dept. Rep. Imple- also, 3;5 mentation of the (1971) Cal. Abortion Act see p. Belous, v. People supra, 954, 965.) Aside from pregnancies deaths, in a resulting normal to term with the normal only pregnancy demands on a woman’s would be intel- body deemed of common by many value, to ligence seriously worsen her health or “diminish quantity, [it] excellence, or absent Many individuals conclude that strength.” circumstances, to full exceptional continued normal pregnancy term such a imposes health that abortion should grave impairment available as matter routine In Be- least first trimester. during “Thus, lous we was a suggested correct test interpretation: one, established is a medical whether the woman’s pregnant physical mental health will be furthered abortion or the child to by bearing (71 term. . . .” Cal.2d at p. however,
It seems more that the was to probable, intent re- some impairment health or of different nature than that quire greater attendant upon normal before the committee could pregnancy approve for an If application abortion for of risk of health. reasons impaired so, the standard remains obscure. It is almost axiomatic that equally woman not continue is desiring subject psychological reasons to of health than a woman. greater impairment pregnant happy this the Is increased the statute intended to re- requisite impairment further, undefined, some quire mathematical measure of diminished health? It is that the did a varia- possible not intend refer to Legislature norm, tion from the but un- rather some definite probability, again Whatever the of the intended specified, mishap. nature impairment as be re- Legislature degree thereof which renders it grave solved health. fact that we are with a woman’s light dealing Persons of common that the numbers will agree intelligence significant slightest of like health while others impairment grave concern event, we unable intelligence may demand more. In considerably any 4In preliminary computation per 1969 the was 27.4 of the maternal death rate 73 at (Statistical table 100.000 live births. Abstract the United States 55; Belous, People 954, 963.) see also indicated, report as year are from this otherwise statistics for the 5Unless employ simple performed excerpts computations either direct or as the result of Department ing excerpts. years such for earlier are from statistical Statistics Thera Health, Implementation California Report Public Third Annual (1970). peutic Act the nature of the either of the statute within to ascertain of diminution stamps or that health degree diminished required its face the can conclude that on We impaired. it gravely in its context. vague present impair” impermissibly “gravely requirement *10 create substantial noted, we the continued must have pregnancy As before the or “mental health” of risk gravely impaired physical The term reasons. for an abortion medical can approve application statute, also claimed health,” of in the context the as “mental employed to illness as “mental create Its definition ambiguities. to impermissible or or the person to to the extent that the woman is herself dangerous 25954) (§ restraint” is in need of or of others or supervision property modifications, the be, of former to with a statement minor appears are institution.6 We a mental standard commitment to for involuntary with but concerned, the definition however, with the of parts specific mental own antithesis: health its error in mental defining the obvious sec- of with the portions is read appropriate illness. When section 25954 ais if there be approved one that abortions tion discovers impair gravely continuance of the substantial risk that pregnancy she is dangerous extent that to the the mental illness of woman of supervision or is in need or or of others herself person property woman is that the of this The clear dictate or restraint. provision restraint, in danger in need of or or supervision already dangerous however, construction, of condition. Such of further her aggravation that It is likely intent. more with the legislative not consistent probably but derangement, any did intend to preexisting Legislature require illness, not that it is mental states clearly of wording provision both men of health, worsened. which must be Unquestionably mental on forced to speculate been common and uncommon have intelligence meaning provision. Soon after the Act was was Abortion it Therapeutic adopted, suggested that test committee members must was stricter than that apply Charles, commitment. & New (Leavy California's Analysis An Act: and Guide Legal to Medical and Procedure 1, 8.) however, 1970, 63,872 U.C.L.A. L.Rev. In abortions practice, 61,572 were approved California and were both figures performed, Code, adoption (Welf. 6Prior Act & Lanterman-Petris-Short Inst. “ seq.), § 5000 et provided: ‘Mentally Welfare and section ill Institutions Code persons’ following . . means persons . who come within either or both of (a) descriptions: vision, Who they super are condition need of such mental are in restraint, treatment, care, (b) they or Who are of mental condition such others, dangerous person property or to are in need themselves or treatment, care, (Italics supervision, or restraint. . . .” added to demonstrate changes.) abortions, for reasons and all all percent approvals 98.2 representing num- such a considerable of mental health.7 Serious doubt must exist a mental institution. could have been committed to ber of women pregnant imagined, health those ever risks to mental beyond Either carries committees, two abortion writers and members legal therapeutic have been intelligence, least common must assume groups provision radically and have reached forced to at the of this guess different interpretations. indications for medical permissible
That language establishing uncer- vague complaints is further attested to by widespread (Final in the of the Ad Hoc Committee tainty Rep. profession. of Delegates Cal. Medical Assn. House Abortions of the *11 5.) the medical is not This indicates that community report but uncertain about the of the law entertains proper interpretation it called to make determinations genuine legal apprehension upon competence. Belous, v. People supra, medical 71 beyond (Compare 954, 971.) There is further evidence that the Therapeutic Abortion Act has not established meaningful standards for who must physicians administer it in the wide divergences ratios of abortions applications abor tions to live births that have occurred state.8 throughout Although 7Subsequent argument case, to oral Department of Public Health issued its Report Fifth Annual Implementation on the the California Abor judicial Act. We (Evid. 459.) tion take Code, notice (h), thereof. §§ subd. applications, The number of of approvals, number and the reasons for which abor tions are requested, approved, and performed, longer provided. no The total 116,749 number of performed abortions climbed to and the rate rose 1,000 per 286.7 live births. Bay percent
In both 1969 Area had of the state's San Francisco footnote in the available, compiled figures those are not statistics complete under act the first years practice that during suggest strongly regions in various differently were construed applied medical criteria despaired had apparently members the state. By all virtually applications criteria and approved medical comprehending (98.6 health percent) (99 and physical of mental percent) for reasons *9 impairment.* establishing' the language to conclude areWe compelled sufficiently is not bemay approved abortions upon criteria Const, Amend. (U.S. due process. standards certain to meet minimal I, XIV, 1; Const., art. § Cal. §
Further, consti has to raise the defendant standing question he was not with charged tutional infirmity although personally applying a medical committee would have confronted standards which vague Belous, People had In its been sought. acted noted that Penal Code section 274 physician under former distinguished his with each abort We determination to peril patient. Act, noting under that section and the responsibility act that the spe act “reduces these pressures [upon physician). *12 the . . . where authorizes abortion a licensed an cifically by physician cases a in abortion is advance committee. ... At least in approved the of where has adherence to the requirements there been procedural (71 .” statute, .. not be held may criminally responsible, physicians 972-973.) Cal.2d at pp.
We concerned, are not here course, with the criminal responsibility aof act, who to physician with attempted the comply provisions but the rather with responsibility of who failed on physician to comply births, live same percent but 59 1969 and 34 percent of the 1970 abortions. The figures Angeles for the Los area percent, percent percent. are 44 19 44 9The history resolving help ambiguities. Legislature is of no in The sought apparently practices bring to alignment the abortion law into close with the medical original of 1967. In its proposed legislation sponsors’ form the reflected the made, however, they belief doing that were so. Several amendments were two least represented prevailing which retreats from the medical standards: addition of the (Note, Therapeutic definition of mental An health The Abortion Act: California Analysis (1967) 242, 246), 19 Hastings of an L.J. deletion of authorization abortion when there was a with “substantial risk the child be born grave Charles, Therapeutic physical (Leavy or mental defect” & New California's Procedure, supra, Analysis Legal 15 Aborton Act: An and Guide to Medical L.Rev, 23; Note, Analysis, 1, Therapeutic Act: An U.C.L.A. Abortion California supra, 242, 249). Hastings is that not able to turn to L.J. The result we are determining of 1967 as aid medical standards an provisions have disturbed us. act, an is that the as committee abortion insofar ground approval concerned, void and a If defendant as a has no nullity. physician the statute that it fails grounds fairly interest challenging personal an to advise of conduct in which he may engage, patient seeking abortion him the statute fails has an interest in certainly asserting to advise her of its to an abortion fairly A woman submitting prohibitions. than other Act is herself provided guilty (Pen. Code, 275.) felony. It no answer say § is the touchstone. Committee is intended to reflect approval approval (See the satisfaction of the Ballard v. Anderson statutory requirements. 873, (1971) 1, 1345, 884-885 484 P.2d Cal.Rptr. [95 requirements 1392].) A.L.R.3d Those both comprehensible and to prospective patient those with decision whether charged performed. an here, bemay Where, as even the latter are unable standards, comprehend the woman com import clearly may act. plain A has to assert his physician patient’s standing rights where they (Griswold otherwise be established. Con necticut 510, 512, 1678]; 381 U.S. L.Ed.2d 85 S.Ct. Anderson, Ballard v. 877-878.) We in Belous the recognized that rule when as applicability serted in defense to a criminal that the defendant charge, noting physician’s standing raise his which her entitlement rights upon patient’s abortion was (71 claimed was Cal.2d at fn. “unchallenged.” The rule is in the case. equally applicable instant concluded
Having that the the medical criteria language establishing abortions are further com vague, impermissibly either to hold the whole pelled Abortion Act invalid *13 or to it in after preserve part invalid “The excising portions. test of is whether the can severability invalid of the statute be severed parts scheme, from the otherwise valid without parts destroying statutory or v. utility (Blumenthal remaining provisions. [Citations.]” 228, Board Medical Examiners (1962) 238 57 Cal.2d Cal.Rptr. [18 of 860, 501, 101]; 368 P.2d (1971) Dillon 4 Municipal v. Court Cal.3d 777, 872 945].) 484 P.2d Cal.Rptr. [94 The manifest principal intent embodied in the was to for Abortion Act provide abortions under an of afford an array circumstances when they appropriate To remedy. invalidate the act or to it and whole preserve 25951, invalidate section (c)(1), and authorize abor only subdivision incest, only tions when the clearly resulted 'from would pregnancy rape instance, course, thwart that fundamental The for would latter purpose. medically abortions “where death proscribe from childbirth although 334 not,” a standard than more
certain, likely be certain or substantially (71 Cal.2d in Belous. to be impermissible we held constitutionally statute, abortions under the 969.) prevailing conclude that We can be criteria satisfying purported without necessity are available matter, 25951, (c). As subdivision practical under section established in such administered doubt that act now being there little fashion. establishing Act
Those the Therapeutic provisions involvement directing and and their procedures the medical committees and issues cases raising rape courts in attorneys district be held to the criteria have have no function incest independent 873, Anderson, With 884-885.) 4 (Cf. supra, v. Cal.3d Ballard invalid. a mechanism requiring scheme out valid statutory criteria approval, (See lose their viability. and the such destroyed procedures approval Board Court, 872; v. 860, Blumenthal Municipal v. Cal.3d supra, Dillon 228, Examiners, these portions Thus Cal.2d Medical the statute must also be held invalid. of abortions Remaining performance provisions proscribing be abortions after the week of requiring 20th accredited hospitals licensed surgeons physicians performed provisions These Hospitals. the Joint Commission Accreditation mechanism, no bear standards from the invalid are distinct approval King In re (See therefrom. are severable thereto and necessary relationship v. Danskin 15, 983]; cf. 474 P.2d (1970) Cal.Rptr. 3 Cal.3d 231 [90 P.2d Diego San School Dist. Unified such 885].) We now to an evaluation of provisions. turn noted, we have As section 25953 “In no event shall provides part: be the termination after the 20th bare week of approved pregnancy.” of the statute leaves unclear be ob whether the must language tained within first weeks or whether the abortion performed within that time The first is more period. suggested strongly interpretation is a settled suggested. “It statutory interpretation principle of a should if so statute literal language doing given consequences would result absurd which the did not intend. Legislature (Bruce Gregory (1967) Cal. 673-674 [Citations.]” *14 [56 193]; 423 P.2d In re Haines see also 195 Cal. Rptr. 883].) P. It is absurd to that the intended suppose Legislature allow the of a an abortion at time the course of performance any during as the and had the to get woman the doctor pregnancy long foresight a 20 weeks. We no have precautionary during first doubt that be intent was to abortions to legislative require performed within weeks of the of We find time further for this conception. support from analysis the evidence before the that after 20 there weeks Legislature ais that the is viable and that an induce a possibility fetus attempt pre a mature is when termination of delivery alternative to abortion possible is a (See Charles, Cali & medical course. pregnancy necessary Leavy New and Analysis Act: An Guide to Medical fornia's Procedure, Legal supra, 11-12.) 15 U.C.L.A. L.Rev. we have refrained from
Although whether the determining Legis lature establish criteria may decision terminate a any limiting its earlier we during think it such that stages, unquestionable exists, exercise, mandates is ca power nothing its when the fetus though of life of the woman. California law pable independent body appears be a establishing 20th week as the time for changed unique but the legal record in no undermines relationship, present way legisla tive that determination 20 weeks is an time for such change. appropriate
The scheme statutory constitutes and absolute complete proscription on abortions after 20th week made No pregnancy. provision Belous, People for medical however dire. In emergencies, 954, 969, we noted: law has that always recognized “[T]he woman’s to life state right takes over interest the pregnant precedence any have in the . . may unborn. . clear the state could not forbid [I]t where, woman to an abortion to a medical procure result certainty, childbirth would We are death. also satisfied that the state re degree . abortion, risk . . which quire where prohibit death certain, from childbirth although would be substan medically certain or tially more than In not.” the instant case are likely presented awith first trimester a record devoid evidence that might determination suggest was constitutionally impermissible. The validity 20-week limitation is not at issue. that abortions be by licensed requirements performed
physicians accredited Joint Commission surgeons hospitals Accreditation directed to the Hospitals clearly quality Defendant, medical care. that this himself a licensed concedes physician, a valid basis for state concedes regulation validity specifically abortions to licensed requiring surgeons. performed physicians Such unlicensed is consistent with the requirement excluding. policy Code, (See from the & Prof. of the medical arts. Bus. persons practice 2141, 2141.5.) §§ *15 dem- which those circumstances be to review again superfluous
It with “criminal” associated and mortality rate of infection onstrate the high Belous, 954, 965- (See People abortions. or “illegal” synonymous abortions have been 966.) illegal For purposes, practical as- the risks Evidence points abortions. unequivocally with nonhospital in other than surgical proper of abortions with the performance sociated in abortions be performed that requirement environment supports hospitals. of New York the State that recent in
We are not unmindful experience com- safety clinics with be in performed indicated that abortions may has Lewit, Early Abortions: (Tietze Legal & to that hospitals. parable No. 1971) 3 (Oct. Family Planning Perspectives, Medical Complications however, constitutional short, 6.)10 any of providing far This falls that, with consistent determination basis challenging in accredited welfare, hospitals. be abortions may performed general Defendant also the accreditation challenges which only requirements by hospitals of abortions. designated performance all California must the State
Although hospitals licensed (§ 1400), of Public Health the additional has Department requirement been imposed abortions are hospitals accredited performed the Joint Commission on Accreditation of It is Hospitals. urged both an requirement delegation body improper power private and overbroad.
The Joint Commission on Accreditation of
is a
group,
private
Hospitals
in Illinois.
headquartered
Both the federal
have
governments
state
relied
upon
standards
the Joint
a guarantee
Commission as
of high
11 (See,
medical care.*
1395x(e) (8),
(Medi-
quality
U.S.C.
1395bb
§§
10Although the Therapeutic
performance
Act does not
Abortion
allow the
clinics,
nonhospital
clearly
handling
abortions in
it
allows the
abortions on an
these, too,
outpatient
We
basis.
note that
to be
as
appear
inpatient
as safe
abortions.
(Margolis
Overstreet, Legal
Hospitalization (1970)
&
Obstet
Without
479;
Gynecology
Margolis,
&
Aspiration
rics
&
Goldsmith
Abortion Without Cervical
Gynecology
Dilation
&
Am. J. Obstetrics
11
have,
us, only
We
record before
October
edition of
standards
principal
That
Joint Commission.
document establishes the
functions
organzation
being:
care
operation
hospitals
“1. To
other health
establish standards
for the
facilities and services.
encourage
will
members
survey
programs
To
and accreditation
“2.
conduct
services volun-
hospitals
and other
care facilities and
professions,
health
health
of
tarily
maintenance,
safety
plant
apply
physical
to a.
basic
principles
certain
organization
patient;
for efficient care of
and administration of function
*16
reliance
care);
Code,
(Medi-Cal).)
Such
(a)(3)
Cal. Admin.
§
unconsti
bodies is not an
the standards of
accrediting
professional
upon
un
it is neither arbitrary,
tutional'
of
if
delegation
governmental power
v.
College
reasonable,
Polytechnic
(See,
Colorado
nor
e.g.,
discriminatory.
(1970)
Occupational
Board
Education
Community Colleges
State
for
38];
Petersburg (1944)
v.
St.
City
We are not aware that the standards of Joint Commission spe- of to the of to the related existence facilities relevant cifically performance however, above, We have which ac- abortions.12 noted high regard Existent creditation held as a medical care. guarantee of of quality state for with the concerned practices essentially licensing hospitals 1400-1426.) of The risk (§§ grosser aspects construction facilities. of of loss will accreditation is an effective that a guarantee hospital Further, allow its facilities for of abortions to deteriorate. performance a manner the standards state virtually unduplicatable by regulation, the Joint Commission the best encourage medical practice providing for medical review and of ongoing members staff qualifications short, the care given In the utilization of these patients. privately developed standards excellence seems neither nor unreasonable. arbitrary It is alleged that utilization the Joint Commission’s standards works economic discriminations. geographical Some counties in the state are without apparently accredited in other hospitals, counties even the county is not hospital accredited, and, claimed, it is individuals are unable to ar- promote high to. quality give of care aspects in all patients optimum in order to benefits that offer; medical science has to and c. maintain the essential services through the facilities organized governing coordinated effort staffs and the (Joint bodies of the facilities.” Hospitals, Commission on Accreditation of Standards Hospitals plus III.) Accreditation of (Oct. 1969) Interpretations Provisional We are not aware that promulgated governing has commission standards establishment and maintenance therapeutic contemplated committees section (b). subdivision eligible 12To be survey leading for a applicant to accreditation an must be a state- hospital, licensed eligible a member of or membership associate in the American Association, Hospital months, operation have been in for 12 meet structural certain organizational requirements, support have certain and at services least one Medicine; following the cology; Pediatrics; clinical Neurology-Psychiatry; Obstetrics-Gyne services: (Joint Surgery. Hospitals, Commission on Accreditation of Stand Hospitals plus ards for Accreditation Interpretations, Provisional record because their economic situation. The for abortions range solely *17 has accredited to that be fails establish that the requirement hospitals or an for either woman from abortion securing geographic prevented any all Indeed, one-third of economic we note that 1970 more than by reasons. for abortions were Medi-Cal. paid by sanctions is the medical criminal procedure by required
to in a those far more be Other including performed hospital. procedures, to-the In medical elsewhere. dangerous patient, may performed practice, though that in performed standards such hospitals, require operations not A to alleviate a social seeking problem accredited ones. state possibly not thereof and not attacking need choose between aspect attacking every it (Dandridge at all. U.S. 471 L.Ed.2d Williams 397 abor 1153].) history S.Ct. there been a of As evident herein has long health with tions performed surroundings consequent inadequate the for risks. Thus there abundant historically justification of area as legislative selection this requiring greater qualitative controls than the case of other medical procedures. raised, either been but they
A number of additional contentions have merit, or without utterly have been rendered moot are by foregoing, to be are shown applicable. entirety.
We is valid in its conclude that Penal Code section 274 Safety no We constitutional Health perceive impediments abor section section 25951 that require Code those of portions to be certificates holders of performed by surgeon’s physician’s tions Accreditation accrediated Joint Commission on hospitals by and to that of section 25953 limiting performance Hospitals, portion abortions 20 weeks Sections first of pregnancies. invalid, (c) (b) section 25951 as are subdivisions and the first sentence of section 25953. in the sufficiently alleges filed court complaint municipal in a accredited charged abortion was not performed hospital does
Joint and thus allege Commission Accreditation Hospitals However, of a commission offense. due public pre requirements process be convicted defendant clude determination in the instant case that a violation of Penal of his failure comply Code 274 because section of the im with that some Abortion Act. Our conclusion violation portant of the act are and at of the alleged were the time portions avail only conjecture 13We on the upon the effect of limitations ability leading seeking acceptance to the abortions one of the factors substandard care. invalid, defendant to with rendered it virtually comply impossible defendant, It act at time he the abortion. is now performed apparent a licensed was not to obtain the abortion approval physician, required However, from medical committee at unless medical any hospital. at a decision could our herein particular hospital anticipate was to the its recognize necessary performance an defendant could not use the facilities hospital, accredited The statute as enacted and until hospital. by the Legislature as herein construed court no notice defendant of adequate gave therewith, conduct or of prohibited procedures constituting compliance *18 and he cannot be with its violation. The of charged judgment properly dismissal, should not disturbed. accordingly, is
The affirmed. judgment
Peters, J., J., Mosk, Tobriner, J., and concurred. J., BURKE, and of abortion one The problem Concurring Dissenting. which has troubled our deeply nation’s and courts. It commands legislators the most consideration of the involved—'the painstaking interests all abortion, it, woman who desires an the who' would the physician perform used, whose facilities would be and hospital and of lastly importance, grave itself, of the rights or fetus viewed as an embryo by some append- simply of the will, to age mother be removed at and others as a defenseless child by its own with to rights and Inevitably life. intertwined into the protection social, problem often and differing, divergent, moral widely religious, It attitudes. is the solemn of the to balance responsibility Legislature and accommodate interests, these various and a task conflicting competing it in 1967 with the accomplished Abortion passage Therapeutic ItAct. task of the courts to and this acknowledge legislative respect balancing and to if all process within constitutional uphold, possible limits, the legislative expression process. over,
The views, debate is period our as divergent probably personal as those of the public generally, are set aside. We address ourselves exclu- to the sively us, legislation to before and seek determine its validity solely reference to by those established available legal principles to courts in determining challenges legislation grounds of unconsti- tutionality. Abortion Act years of seven Therapeutic product
study.1 Innumerable hearings were lengthy conducted to afford public 1Leavy Analysis Charles, and New Abortion Act: An California's Procedure, Legal Guide to Medical and 1. U.C.L.A L.Rev. views; from numerous its representatives
ample opportunity express their respective and made known addressed Legislature diverse groups legislation advice. Countless drafts allegiances proposed opinions, of hearings, This lengthy were debated discarded.2 process prepared, in 1967 with finally adoption debate culminated drafting Act, legislation designed admittedly compromise herein The majority far interests. as opposing accommodate possible constitu- effort means nullify type Legislature’s seven-year demonstrate, which, is not even tional as I will applicable attack the abortion from case. I have removed “nullify,” majority repeat to' devices designed deny right .the most procedure important protective mother, a rejected concept flatly of abortion demand upon simply Legislature. submit, which, I law, It and one is a cardinal respectfully principle here, to be that a statute is has failed majority presumed apply unmistakably constitutional its unconstitutionality clearly unless ap sufficient all intendments favor and mere doubt is validity its pears; *19 (In H., 513, Ricky declare it re 2 Cal. reason to invalid. Cal.3d 519 [86 M., 444, 76, 204]; re 70 453 468 P.2d In Dennis Cal. Rptr. [75 1, 450 the 296].) P.2d invalidate central majority The Rptr. provisions the that Abortion Act the basis of their own doubts the act’s are certain to with due sufficiently require provisions comply process However, act, the heart of the the have striking ments. in down majority rule, “void misunderstood so-called for have vagueness” the misapplied rule, have limits of that and misconstrued evident proper the act’s I now discuss these intent underlying provisions. separate distinct errors in of this case. majority’s analysis 25951 Code sections Safety
1. Health and vagueness 25954 are void
a. Section
25951,
was
(c)
of section
subdivision
The
language
pertinent
Code,
the Model Penal
230.3 of
in section
language
from identical
adopted
is sub-
that
medical
“[t]here
finding by
hospital’s
requires
would gravely impair
continuance of the
stantial risk that
claim
majority
Although
health of the mother.”
or mental
physical
(ante,
they strongly suggest
pp.
need not resolve
they
question,
risk”
327, 328,
3)
“substantial
improperly
and fn.
the phrase
Opposition, 13
Sands,
to the
An Answer
Act:
2See
The
L.Rev. 285.
U.C.L.A.
Further,
that the words “gravely impair”
also conclude
they
uncertain.
those
furnishing
guide
standard
vague,
impermissibly
inadequate
this
contrary,
act’s
To the
who must
follow the
interpret
provisions.
Belous,
354,
People v.
458 P.2d
court in
determination 71 Cal.2d staff committee of an accredited to determine incompetent hospital will.be what a “substantial” risk is. Yet this court recently has test adopted cases which kidnaping determination which is similar. requires quite Daniels, People v. 225, In 71 Cal.2d 459 P.2d Cal.Rptr. [80 677], decision, A.L.R.3d a case filed one month after the Belous held that in whether movements of the determining robbery victim constituted the crime of test is whether or not the kidnaping, movements “are merely incidental commission robbery substantially do not increase the risk harm over and above that neces- sarily 1139; in the crime of present itself.” italics robbery (71 Cal.2d added.) Timmons, As case, stated in a People v. subsequent 648], 482 P.2d “The true test in each Cal.Rptr. case *20 mere mileage but whether the ‘substantially movements of the victims in- crease the risk harm’ .... qualifier [“substantially”] sig- [T]he nificant.” In the Timmons court recognized that the word “substantially” one, is a relative the exercise requiring and that the substan- judgment, a tiality of risk harm will case from to case vary the depending upon (4 416, 2.) circumstances. particular Cal.3d at fn. p.
If the “substantial risk” the language of Act is Abortion vague, impermissibly then the certainly same in our own redefi- language nition of should be kidnaping held too to vague serve as a basis for the of the drastic imposition which Yet, penalties crime. as accompany Daniels, we made People clear in 1119, v. supra, 71 Cal.2d “The law must, with instances in which replete a at his person his govern peril, conduct by such ‘reasonable,’ nonmathematical standards as ‘prudent,’ ‘substantial,’ ‘necessary and the . proper,’ like. . . Yet standards this kind are not impermissibly vague, their provided can be objectively ascertained reference to by common of mankind.” experiences
342 Victor, added; 1128-1129; People see also (Italics Cal.2d at pp. 391].)3 P.2d 298-300 Cal.Rptr. of Health language the risk” and impair” If “substantial “gravely uncertain, to widely and subject Code section truly 25951 were Safety the to expect from conflicting hospital hospital, interpretations demon- a the own majority’s figures statistics disclose such variation. Yet uniform throughout rate was relatively strate that be ex- earlier 331.) may The variations in (Ante years the state. at p. certain a initial reluctance part hospitals probable plained which, was of the state to sanction practice prior areas counter fundamental medical law but also ran under felony fetus, except life of the preserve protect responsibility of the life of mother (such as the gravest preservation reasons herself). a reason- section of Health and Code
Giving language Safety construction, con- able, the words “substantial risk common sense mental or tinuance of the would gravely physical pregnancy impair mother,” (not an actual health interpreted requiring of serious risk cognizable remote or imaginary, conjectural), medically In the with childbirth. harm over and above risk associated ordinarily “It . . . . . . that words seems majority, probable a different to health or of greater intent was to some require impairment before the committee nature than attendant normal upon of im- could an abortion for reasons of risk an approve application Otherwise, abortion would (Ante health.” an permitted paired case, Act’s rendered every provisions under the determination section superfluous. Presumably, required every analysis would be different than the physician, no routine justifies risk contemplated make whether deciding broad to sufficiently Of necessity, language procedure. operative of discretion in exercise amount enable the staff each case. *21 (ante, 327, 328, 3) distinguish the basis that majority Daniels on pp. 3The fn. would defines “the line be language Therapeutic Abortion Act risk” in the “substantial give criminal,” as to yond fails to “fair notice” proper which becomes thus conduct act. majority misread the are not. The have which abortions are criminal guidance hereof, solely is for the explain part in risk” criterion As I “substantial an determining approve or in whether medical committee hospital’s meaning of guess at the required is mother nor doctor abortion. Neither the her peril requisite long violating as the the act. So risk” at the term “substantial approval may be committee, nor doctor mother her neither the is obtained from the obtained, is abortion is Conversely, if no such advance prosecuted. exist. risk did though belatedly that substantial may it be contended illegal even too broad to language
The believe statutory is majority apparently standard; it every as a find “almost axiomatic” that they serve useful risks. woman some It seeking subject psychological true, however, also of a successful abortion in itself that performance Thus, result in adverse that risks may effects. psychological psychological exist indicate that an abortion must may in case does not every necessarily be in case. is the the act It committee’s under approved eveiy responsibility case, whether, to determine in a the usual psychological pressures or, health, constitute substantial risk of mental or impaired physical whether, case, under the circumstances of that the mother’s example, and mental will ... health be furthered child to “physical by bearing (71 971.) . . . .” term Cal.2d at p.
b. Section 25954 Thus, we alternative approach majority’s theory, namely, vagueness that the Legislature defined “mental health” as “mental ma- illness.” The jority different discussing Abortion Act part recog- “ nize that ‘It ais settled that language principle statutory interpretation of a statute should not be given literal if so would result doing ” in absurd which the did consequences Legislature not intend. [Citations.]’ (Ante 334.) at Yet the overlook the evident p. majority that application to the “mental health” in the definition act. The principle majority’s premise is that term “mental (c) health” in subdivision of Health and Safety Code section 25951 is defined as “mental thereby illness” in section resulting in absurd that an abortion be consequence approved if there is a substantial risk that continuance of the gravely mother’s mental impair illness. The majority conclude “[t]he clear dictate of this is that the woman must provision already dangerous or need of restraint, or supervision and in of a further danger aggrava- 330.) tion (Ante of her condition.” at p. concede, however, majority must, they is more likely “[i]t
that the Legislature did not intend to any require derangement preexisting .. . (Ante 330.) Indeed, .” earlier in p. their state majority opinion, thus than appears “[i]t rather ‘mental health’ the defining language section impaired [of to define what is deemed to constitute purports 25954] Quite added; (Italics mental health.” ante at this is obviously, what precisely intended to do. There is in the Legislature nothing Act, thereof, prior suggesting drafts abortions should therapeutic available ill mothers. The only mentally entire prevent thrust of the act mental and illness which physical threatens to arise from continued pregnancy. The evident purpose *22 was, themselves majority as the and section 25954
Health Code Safety which would justify of risk to define more type acknowledge, precisely become, abortion, through might the risk that woman namely, an to herself or others in need super- continued dangerous pregnancy, or restraint. vision sense, “In one in one the articles cited majority,
As stated qualifying section [25954] may just restate the grounds for a mental health risk abortion, i.e., grave that be a impairment there substantial ‘and we of saying It have way health. been legislature’s mental to- thát recognize . . the doctors mean it.’ . is incumbent on really [I]t cases.” mental health to serious to restrict abortions for intended Legislature Charles, 1, 8.) supra, L.Rev. U.C.L.A. (Leavy 25951, (c), that the of sections subdivision language I conclude unconstitutionally vague and 25954 of the Health and Code is Safety Belous, since, supra, v. People as the court stated previously . 954, “is . . does involve the test established a medical one [which] beyond considerations medical competence." vagueness” rule is inapplicable
2. The “void for the act’s regarding The sole majority’s ground invalidating provisions that those of substantial risk is provisions committee finding requisite due uncertain, a denial of it would be are impermissibly vague if under such circumstances. Even criminal process impose penalties act’s risk” to the that the “substantial analysis, assume contrary foregoing uncertain, conclu- I majority’s provision vague strongly dispute this case. sion that such violates due any uncertainty process “ which hold that statute line of cases rely ‘[A] The majority upon vague an act in terms so which either forbids or doing requires at meaning its necessarily men of common intelligence guess of due its the first process differ as to violates essential application, ’’ as their (Ante law.’ at “ ‘ These cases have accepted premise life, liberty or peril property “No one bemay principle required to be in to the All entitled as statutes. speculate penal (Italics . . as to what the State commands or forbids . formed Belous, 960, added; v. People supra, from 71 Cal.2d quoting case.) earlier Belous, People
In majority example, Code invalidated former Penal section unconstitutionally vague necessary which made it a crime to an abortion “unless the same is commit . . . .” court life deemed preserve quoted [the woman’s] *23 of criminal penalties, too uncertain to justify language imposition that the woman that “the acts at his if he determines stating peril physician a and to to an He is felony is entitled abortion. subject prosecution of his medicine ... if his decision is wrong.” deprivation right practice (71 Belous 972.) Cal.2d at The distinguished responsibility p. court of the Code section from under the Penal physician requirements which, noted, “reduces those under the Act court these act authorizes The [upon pressures physician]. specifically where the abor- licensed in an accredited by hospital physician in advance of the medical staff by tion approved Code, (Health 25951.) At & medical standards. Saf. § hospital, applying least in cases where there has been adherence to require- procedural statute, criminally physicians may responsible, not be held ments jury may subsequently that the abortion was not determine authorized (Italics added; by statute." Belous, words, People
In other unlike the statute attacked in Abortion Act does not require physi- act cian to at his he whether or speculate may may legally peril Instead, he, an abortion. use he whatever standard in his perform may may choose in whether an abortion professional judgment, determining out, should be as Belous all the performed. points Thereupon, physician do under procedural the act is follow the requirements specified section namely, obtain advance from the hospital’s staff committee and a that committee that either the finding substantial risk exists or that the resulted from requisite rape long incest. So as the committee makes finding requisite approves abortion, it in an accredited without physician perform hospital fear of criminal prosecution. hold, do,
To as the that defendant Barksdale was denied due majority process being at what the act of him is compelled guess required to me. The simply bewildering who are to> persons required interpret the “substantial risk” are those apply language who comprise persons the medical staff committee of the the act hospital, neither nor Penal Code section 274 criminal committee’s liability for the imposes possible error in substantiality the risk to the appraising mother in a particular situation.
The majority circumvent the attempt foregoing analysis by arguing had Doctor Barksdale standing assert his own to fair right patient’s notice of the act’s note that the who woman requirements. majority submits to an (Pen. Code, illegal abortion herself guilty felony. *24 who the woman
§ 275.) no more Yet the vagueness theory applies it: Both are seeks than to the doctor who perform an abortion seeks obtain advance they advised the act’s unequivocally provisions the re committee committee’s finding approval, accompanied Thus, risk, substantial abortion before an quisite may legally performed. neither the nor his guess doctor patient required If obtain they act’s at the provisions committing felony. peril from criminal insulated they requisite finding approval, sanction; will commit they if fail to obtain that they finding approval, Thus, uncertainty if on with the abortion. they carry any possible felony in the regarding minds of the members of the medical committee hospital’s act’s could not affect or criminal responsibility requirements expand of the doctor or his patient. concur, course, I to the extent with the decision herein majority’s from,
it the act being those abortions upholds provisions prohibit in unaccredited who do- not hold performed hospitals by persons act, however, certificates. of its By physician’s surgeon’s depriving considered devices the state carefully majority adopt protective mother, at the will of policy rejected by concept expressly I would the act in entirety. its Legislature. uphold The order of dismissal should be reversed.
McComb, Sullivan, J., J., concurred. for a was denied December 1972. Appellant’s petition rehearing J., J., Sullivan, J., McComb, Burke, were of the that the opinion should be granted. petition