PEOPLE v. BARKSDALE Docket No. Crim. 15866.
8 Cal.3d 320 (1972)
503 P.2d 257
105 Cal. Rptr. 1
THE PEOPLE, Plaintiff and Appellant, v. ROBERT W. BARKSDALE, Defendant and Respondent.
Supreme Court of California. In Bank.
November 22, 1972.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Edward P. O'Brien, Charles R.B. Kirk and Derald E. Granberg, Deputy Attorneys General, for Plaintiff and Appellant.
Musick, Peeler & Garrett, James E. Ludlam, Robert D. Girard, Hassard, Bonnington, Rogers & Huber, Howard Hassard, Lawrence W. Kessenick and James F. Kemp as Amici Curiae on behalf of Plaintiff and Appellant.
Mintz, Giller, Himmelman & Mintz, Herman W. Mintz and Morton B. Goldstein for Defendant and Respondent.
A.L. Wirin, Fred Okrand, Roy Lucas, Barbara Ashley Phillips, Pat Kowitz, Joan K. Bradford, Zad Leavy, Levinson, Rowen, Klein & Leavy, Norma G. Zarky, Alan F. Charles, Johnson C. Montgomery, Laurence R. Sperber, Paul N. Halvonik, Charles C. Marson, Terry J. Hatter, Jerome Levine, Roblin J. Williamson, Roland E. Brandel, August B. Rothschild, Jr., and Judith G. Kleinberg as Amici Curiae on behalf of Defendant and Respondent.
Walter R. Trinkaus, J.J. Brandlin, James E. Ryan, Ray E. McAllister, Andrews, Andrews, Thaxter & Jones, John F. Duff, Richard G. Logan, Curran, Golden, McDevitt & Martin and William R. Kennedy as Amici Curiae.
The People seek to prosecute a licensed physician for a violation of Penal Code section 274 (abortion). (Amended Stats. 1967, ch. 327, § 3.) At issue is the constitutionality of the 1967 Therapeutic Abortion Act. (Health & Saf. Code, §§ 25950-25954.)
California has traditionally authorized abortions in limited circumstances. Under the terms of the 1967 enactment abortions became more readily available where supported by administrative determinations of the existence of particular circumstances. We are thus confronted not with the question whether the state should or must allow abortions but, rather, whether the current legislation satisfies various constitutional tests against which it must be measured. We hold that it does so only in part and dispose of the cause accordingly.
Penal Code section 274, as amended in 1967, provides: "Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever with intent thereby to procure the miscarriage of such woman, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by imprisonment in the state prison not less than two nor more than five years."
The Therapeutic Abortion Act authorizes licensed physicians and surgeons to perform abortions in accredited hospitals if the abortion is approved in advance by a committee of the hospital's medical staff, which committee is to be established and maintained in accordance with the standards promulgated by the Joint Commission on Accreditation of Hospitals. (§ 25951.) The committee may never consist of fewer than two licensed physicians and surgeons and a committee of three is required "if the proposed termination of pregnancy will occur after the 13th week...." (§ 25953.) Unanimous consent is required where the committee consists of no more than three members. (§ 25951, subd. (b).) We will consider later a further provision of the statute which states: "In no event shall the termination be approved [by the committee] after the 20th week of pregnancy." (§ 25953.)
Prior to approving an application for an abortion the committee must find that "[t]here is a substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother" (§ 25951, subd. (c)(1)), or that "[t]he pregnancy resulted from rape or incest" (§ 25951, subd. (c) (2)).
Before the committee may approve an application for an abortion for reasons of pregnancy resulting from rape or incest, the application must be submitted to the district attorney for evaluation and a determination of the existence of probable cause to believe that the pregnancy resulted from rape or incest. (Pen. Code, §§ 261, 285.) Procedures for a court review are provided following an adverse determination by the district attorney. (§ 25952.)
Penal Code section 274, in language substantially unchanged between 1850 and 1967, forbade abortions except when necessary to preserve the life of the woman. In 1969, we concluded that the particular language was not susceptible of a clear meaning consistent with legislative intent. (People v. Belous (1969) 71 Cal.2d 954 [80 Cal.Rptr. 354, 458 P.2d 194].) The current enactment is the result of almost a decade of legislative effort to satisfy sharply conflicting social, religious and other interests.
Defendant contends that various provisions of the Therapeutic Abortion Act are so ambiguous that they cannot be constitutionally enforced.
While the basic standard against which statutes must be measured for vagueness is a constant, the vigor with which that standard is applied varies with the determination whether a constitutionally protected right is involved. We have heretofore concluded that two such rights are raised in the decision to seek an abortion. However, as will be seen, at least two provisions of the Therapeutic Abortion Act are so imprecise that we would be compelled to conclude that they are impermissibly vague even were no areas of constitutional protection involved.
The almost universal ground upon which committee approval of an abortion has been granted is on a finding that there "is substantial risk
"Impair" means to "make worse; to diminish in quantity, value, excellence, or strength." "Gravely" means "in a grave or serious manner." (Webster's New Internat. Dict., supra.) Certainly a pregnant woman's
It seems more probable, however, that the legislative intent was to require some impairment to health greater or of a different nature than that attendant upon normal pregnancy before the committee could approve an application for an abortion for reasons of risk of impaired health. If so, the standard remains equally obscure. It is almost axiomatic that a woman not desiring to continue a pregnancy is subject for psychological reasons to greater impairment of health than a happy pregnant woman. Is this the requisite increased impairment or is the statute intended to require some further, undefined, mathematical measure of diminished health? It is possible that the Legislature did not intend to refer to a variation from the norm, but rather to some definite probability, again unspecified, of mishap. Whatever the nature of the impairment intended by the Legislature the degree thereof which renders it as grave must be resolved in light of the fact that we are dealing with a woman's health. Persons of common intelligence in significant numbers will agree that the slightest impairment of health is of grave concern while others of like intelligence may demand considerably more. In any event, we are unable
As we have noted, the continued pregnancy must create a substantial risk of gravely impaired physical or "mental health" before the committee can approve an application for an abortion for medical reasons. The term "mental health," as employed in the context of the statute, is also claimed to create impermissibly ambiguities. Its definition as a "mental illness to the extent that the woman is dangerous to herself or to the person or property of others or is in need of supervision or restraint" (§ 25954) appears to be, with only minor modifications, a statement of the former standard for involuntary commitment to a mental institution.
Soon after the Therapeutic Abortion Act was adopted, it was suggested that the test committee members must apply was stricter than that for commitment. (Leavy & Charles, California's New Therapeutic Abortion Act: An Analysis and Guide to Medical and Legal Procedure (1967) 15 U.C.L.A.L.Rev. 1, 8.) In practice, however, in 1970, 63,872 abortions were approved in California and 61,572 were performed, both figures
That the language establishing the permissible medical indications for abortion is vague is further attested to by widespread complaints of uncertainty in the medical profession. (Final Rep. of the Ad Hoc Committee on Therapeutic Abortions of the Cal. Medical Assn. House of Delegates (1970) p. 5.) This report indicates that the medical community is not only uncertain about the proper interpretation of the law but entertains genuine apprehension that it is called upon to make legal determinations beyond medical competence. (Compare People v. Belous, supra, 71 Cal.2d 954, 971.)
There is further evidence that the Therapeutic Abortion Act has not established meaningful standards for the physicians who must administer it in the wide divergences in ratios of abortions to applications and abortions to live births that have occurred throughout the state.
We are not here concerned, of course, with the criminal responsibility of a physician who attempted to comply with the provisions of the act, but rather with the responsibility of a physician who failed to comply on
Having concluded that the language establishing the medical criteria for approval of abortions is impermissibly vague, we are further compelled either to hold the whole of the Therapeutic Abortion Act invalid or to preserve it in part after excising the invalid portions.
As we have noted, section 25953 provides in part: "In no event shall the termination be approved after the 20th week of pregnancy." The bare language of the statute leaves unclear whether the approval must be obtained within the first 20 weeks or whether the abortion must be performed within that time period. The first suggested interpretation is more strongly suggested.
The statutory scheme constitutes a complete and absolute proscription on abortions after the 20th week of a pregnancy. No provision is made for medical emergencies, however dire. In People v. Belous, supra, 71 Cal.2d 954, 969, we noted: "[T]he law has always recognized that the pregnant woman's right to life takes precedence over any interest the state may have in the unborn.... [I]t is clear that the state could not forbid a woman to procure an abortion where, to a medical certainty, the result of childbirth would be death. We are also satisfied that the state may not require that degree of risk ... which would prohibit an abortion, where death from childbirth although not medically certain, would be substantially certain or more likely than not." In the instant case we are presented with a first trimester abortion and a record devoid of evidence that might suggest that the legislative determination was constitutionally impermissible. The validity of the 20-week limitation is not at issue.
We are not unmindful that recent experience in the State of New York has indicated that abortions may be performed in clinics with safety comparable to that in hospitals. (Tietze & Lewit, Legal Abortions: Early Medical Complications (Oct. 1971) 3 Family Planning Perspectives, No. 4, p. 6.)
Defendant also challenges the accreditation requirements by which only particular hospitals are designated for the performance of abortions.
The Joint Commission on Accreditation of Hospitals is a private group, headquartered in Illinois. Both the federal and state governments have relied upon the standards of the Joint Commission as a guarantee of high quality medical care.
We are not aware that the standards of the Joint Commission are specifically related to the existence of facilities relevant to the performance of abortions.
It is alleged that utilization of the Joint Commission's standards works economic and geographical discriminations. Some counties in the state are apparently without accredited hospitals, in other counties even the county hospital is not accredited, and, it is claimed, individuals are unable to arrange
Abortion is the only medical procedure required by criminal sanctions to be performed in a hospital. Other procedures, including those far more dangerous to the patient, may be performed elsewhere. In practice, medical standards require that such operations be performed in hospitals, though possibly not accredited ones. A state seeking to alleviate a social problem need not choose between attacking every aspect thereof and not attacking it at all. (Dandridge v. Williams (1970) 397 U.S. 471 [25 L.Ed.2d 491, 90 S.Ct. 1153].) As evident herein there has been a long history of abortions performed in inadequate medical surroundings with consequent health risks.
A number of additional contentions have been raised, but they either have been rendered moot by the foregoing, are utterly without merit, or are not shown to be applicable.
The judgment is affirmed.
Peters, J., Tobriner, J., and Mosk, J., concurred.
The problem of abortion is one which has deeply troubled our nation's legislators and courts. It commands the most painstaking consideration of the interests of all involved — the woman who desires an abortion, the physician who would perform it, the hospital whose facilities would be used, and lastly and of grave importance, the rights of the embryo or fetus itself, viewed by some simply as an appendage of the mother to be removed at will, and by others as a defenseless child with its own rights to protection and life. Inevitably intertwined into the problem are differing, often widely divergent, social, religious, moral and medical attitudes. It is the solemn responsibility of the Legislature to balance and accommodate these various conflicting and competing interests, a task which it accomplished in 1967 with the passage of the Therapeutic Abortion Act. It is the task of the courts to acknowledge and respect this legislative balancing process and to uphold, if at all possible within constitutional limits, the legislative expression of that process.
The period of debate is over, our personal views, probably as divergent as those of the public generally, are set aside. We address ourselves exclusively to the particular legislation before us, and seek to determine its validity solely by reference to those established legal principles available to courts in determining challenges to legislation on grounds of unconstitutionality.
The Therapeutic Abortion Act is the product of seven years of legislative study.
It is a cardinal principle of law, and one which, I respectfully submit, the majority has failed to apply here, that a statute is presumed to be constitutional unless its unconstitutionality clearly and unmistakably appears; all intendments favor its validity and mere doubt is not a sufficient reason to declare it invalid. (In re Ricky H., 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204]; In re Dennis M., 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296].) The majority invalidate the central provisions of the Therapeutic Abortion Act on the basis of their own doubts that the act's provisions are sufficiently certain to comply with due process requirements. However, in striking down the heart of the act, the majority have misapplied the so-called "void for vagueness" rule, have misunderstood the proper limits of that rule, and have misconstrued the evident legislative intent underlying the act's provisions. I now discuss these separate and distinct errors in the majority's analysis of this case.
1. Health and Safety Code sections 25951 and 25954 are not void for vagueness
a. Section 25951
The pertinent language of subdivision (c) of section 25951, which was adopted from identical language in section 230.3 of the Model Penal Code, requires a finding by the hospital's medical committee that "[t]here is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother." Although the majority claim that they need not resolve the question, they strongly suggest (ante, pp. 327, 328, and fn. 3) that the phrase "substantial risk" is improperly
The majority herein evidently believe, contrary to the court's prior determination in People v. Belous, supra, 71 Cal.2d 954, that the medical staff committee of an accredited hospital will be incompetent to determine what a "substantial" risk is. Yet this court has recently adopted a test in kidnaping cases which requires a determination which is quite similar. In People v. Daniels, 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677], a case filed one month after the Belous decision, we held that in determining whether particular movements of the robbery victim constituted the crime of kidnaping, the test is whether or not the movements "are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself." (71 Cal.2d at p. 1139; italics added.) As stated in a subsequent case, People v. Timmons, 4 Cal.3d 411, 415 [93 Cal.Rptr. 736, 482 P.2d 648], "The true test in each case is not mere mileage but whether the movements of the victims `substantially increase the risk of harm'.... [T]he qualifier ["substantially"] is significant." In Timmons the court recognized that the word "substantially" is a relative one, requiring the exercise of judgment, and that the substantiality of a risk of harm will vary from case to case depending upon the particular circumstances. (4 Cal.3d at p. 416, fn. 2.)
If the "substantial risk" language of the Therapeutic Abortion Act is impermissibly vague, then certainly the same language in our own redefinition of kidnaping should be held too vague to serve as a basis for the imposition of the drastic penalties which accompany that crime. Yet, as we made clear in People v. Daniels, supra, 71 Cal.2d 1119, "The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as `reasonable,' `prudent,' `necessary and proper,' `substantial,' and the like.... Yet standards of this kind are not impermissibly vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind."
If the "substantial risk" and "gravely impair" language of Health and Safety Code section 25951 were truly uncertain, and subject to widely conflicting interpretations from hospital to hospital, we would expect the statistics to disclose such a variation. Yet the majority's own figures demonstrate that by 1970 the approval rate was relatively uniform throughout the state. (Ante at p. 331.) The variations in earlier years may be explained by a probable initial reluctance on the part of hospitals in certain areas of the state to sanction a practice which, prior to 1967, was not only a felony under the law but also ran counter to fundamental medical responsibility to protect and preserve the life of the fetus, except for the gravest of reasons (such as the preservation of the life of the mother herself).
Giving the language of Health and Safety Code section 25951 a reasonable, common sense construction, the words "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother," may be interpreted as requiring an actual (not imaginary, remote or conjectural), medically cognizable risk of serious harm over and above the risk ordinarily associated with childbirth. In the words of the majority, "It seems ... probable ... that the legislative intent was to require some impairment to health greater or of a different nature than that attendant upon normal pregnancy before the committee could approve an application for an abortion for reasons of risk of impaired health." (Ante at p. 329.) Otherwise, an abortion would be permitted in every case, and the Therapeutic Abortion Act's provisions rendered superfluous. Presumably, the determination required under section 25951 would be no different than the routine analysis which every physician must make in deciding whether or not a particular risk justifies a contemplated operative procedure. Of necessity, the language is sufficiently broad to enable the medical staff committee to exercise an amount of discretion in each case.
b. Section 25954
Thus, we approach the majority's alternative vagueness theory, namely, that the Legislature defined "mental health" as "mental illness." The majority in discussing a different part of the Therapeutic Abortion Act recognize that "`It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citations.]'" (Ante at p. 334.) Yet the majority overlook the evident application of that principle to the "mental health" definition in the act. The majority's premise is that the term "mental health" in subdivision (c) of Health and Safety Code section 25951 is defined as "mental illness" in section 25954, thereby resulting in the absurd consequence that an abortion may be approved only if there is a substantial risk that continuance of the pregnancy would gravely impair the mother's mental illness. The majority conclude "[t]he clear dictate of this provision is that the woman must already be dangerous or in need of supervision or restraint, and in danger of a further aggravation of her condition." (Ante at p. 330.)
The majority concede, however, as they must, that "[i]t is more likely that the Legislature did not intend to require any preexisting derangement...." (Ante at p. 330.) Indeed, earlier in their opinion, the majority state "[i]t thus appears that rather than defining `mental health' the language [of section 25954] purports to define what is deemed to constitute impaired mental health." (Italics added; ante at p. 326.) Quite obviously, this is precisely what the Legislature intended to do. There is nothing in the Therapeutic Abortion Act, or in prior drafts thereof, suggesting that therapeutic abortions should be available only to mentally ill mothers. The entire thrust of the act is to prevent mental and physical illness which threatens to arise from continued pregnancy. The evident purpose of
As stated in one of the articles cited by the majority, "In one sense, this qualifying section  may just restate the grounds for a mental health abortion, i.e., that there be a substantial risk of grave impairment of mental health. It may have been the legislature's way of saying `and we really mean it.' ... [I]t is incumbent on the doctors to recognize that the Legislature intended to restrict abortions for mental health to serious cases." (Leavy and Charles, supra, 15 U.C.L.A.L.Rev. 1, 8.)
I would conclude that the language of sections 25951, subdivision (c), and 25954 of the Health and Safety Code is not unconstitutionally vague since, as the court previously stated in People v. Belous, supra, 71 Cal.2d 954, the test established "is a medical one [which] ... does not involve considerations beyond medical competence."
2. The "void for vagueness" rule is inapplicable
The majority's sole ground for invalidating the act's provisions regarding the requisite committee finding of substantial risk is that those provisions are impermissibly vague and uncertain, and that it would be a denial of due process to impose criminal penalties under such circumstances. Even if we assume contrary to the foregoing analysis, that the act's "substantial risk" provision is vague and uncertain, I strongly dispute the majority's conclusion that any such uncertainty violates due process in this case.
The majority rely upon a line of cases which hold that "`[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.'" (Ante at p. 327.) These cases have as their premise the accepted principle that "`"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids...."'" (Italics added; People v. Belous, supra, 71 Cal.2d 954, 960, quoting from an earlier case.)
In People v. Belous, supra, 71 Cal.2d 954, for example, the majority invalidated as unconstitutionally vague former Penal Code section 274, which made it a crime to commit an abortion "unless the same is necessary to preserve [the woman's] life...." The court deemed the quoted
In other words, unlike the statute attacked in People v. Belous, supra, 71 Cal.2d 954, the Therapeutic Abortion Act does not require the physician to act at his peril and speculate whether he may or may not legally perform an abortion. Instead, he may use whatever standard he, in his professional judgment, may choose in determining whether an abortion should be performed. Thereupon, as Belous points out, all the physician must do under the act is follow the procedural requirements specified in section 25951, namely, obtain advance approval from the hospital's medical staff committee and a finding by that committee that either the requisite substantial risk exists or that the pregnancy resulted from rape or incest. So long as the committee makes the requisite finding and approves the abortion, the physician may perform it in an accredited hospital without fear of criminal prosecution.
To hold, as the majority do, that defendant Barksdale was denied due process by being compelled to guess at what the act required of him is simply bewildering to me. The only persons who are required to interpret and apply the "substantial risk" language are those persons who comprise the medical staff committee of the hospital, and neither the act nor Penal Code section 274 imposes criminal liability for the committee's possible error in appraising the substantiality of the risk to the mother in a particular situation.
The majority attempt to circumvent the foregoing analysis by arguing that Doctor Barksdale had standing to assert his patient's own right to fair notice of the act's requirements. The majority note that the woman who submits to an illegal abortion is herself guilty of a felony. (Pen. Code,
I concur, of course, with the majority's decision herein to the extent that it upholds those provisions of the act which prohibit abortions from being performed in unaccredited hospitals or by persons who do not hold physician's and surgeon's certificates. By depriving the act, however, of its carefully considered protective devices the majority adopt for this state a policy of abortion at the will of the mother, a concept expressly rejected by the Legislature. I would uphold the act in its entirety.
The order of dismissal should be reversed.
McComb, J., and Sullivan, J., concurred.
Appellant's petition for a rehearing was denied December 29, 1972. McComb, J., Burke, J., and Sullivan, J., were of the opinion that the petition should be granted.
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