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BALLARD v. ANDERSON USC

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Court of Appeal, Second District, Division 2, California.

Charles BALLARD, M.D., and Ana Maria Carlos, a minor, by Laurel Dollinger, her guardian ad litem, for themselves and all others similarly situated, Petitioners, v. Gail V. ANDERSON, M.D., in his capacity as chairman of the Therapeutic Abortion Committee of Los Angeles County—USC Medical Center, Respondent.

Civ. 37223.

Decided: October 21, 1970

Alan F. Charles, Los Angeles, for petitioners. John D. Maharg, County Counsel, by Norman J. Gilbert, Asst. County Counsel and Paul G. Seehusen, Deputy County Counsel, for respondent.

This is an original proceeding in mandamus.

The facts are not in dispute. Petitioner Charles Ballard is a licensed physician and a specialist in obstetrics and gynecoloby. (Dr. Ballard). Petitioner Ana Maria Carlos (Carlos) appearing by a guardian ad litem, is a 20-year old unmarried indigent minor who, with one infant child, lives with her mother. Carlos, at the time this petition was heard, was approximately 16 weeks pregnant.

On or about August 14, 1970, Carlos requested a therapeutic abortion at the Los Angeles County—USC Medical Center (Medical Center). She was referred to Dr. Ballard. He examined her and concluded that she was qualified for a therapeutic abortion according to law. The Therapeutic Abortion Committee (Health and Safety Code, § 25951) of Medical Center refused to consider Carlos' application for the sole reason that she was an unmarried unemancipated minor who did not have parental consent.

Civil Code, § 34.6 provides an exception to this settled rule for an emancipated minor who is defined as ‘* * * 15 years of age or older who is living separate and apart from his parents or legal guardian * * *.’ The minor at bench expressly pleads that she is not within that esception.

The Committee informed Dr. Ballard that it was ready to consider the application if it was resubmitted with the required parental consent. Carlos admits she is unable to obtain her mother's consent and asks this Court to order the Therapeutic Abortion Committee of the Medical Center to consider her application without it, contending that provisions of the California Therapeutic Abortion Act, Health and Safety Code, § 25950 et seq. enacted in 1967, when read together with section 34.5 of the Civil Code, enacted in 1953,1 eliminate the necessity of such consent. We do not agree.

The object of a statute must be considered in its construction. (Wotton v. Bush, 41 Cal.2d 460, 467, 261 P.2d 256.) Section 34.5 was enacted 14 years before the Therapeutic Abortion Law. It does not authorize or permit abortions without parental consent even to preserve the life of the mother. The plain object of Civil Code, section 34.5 is clearly the preservation of the health and life of a pregnant unmarried minor and the health and life of the unborn child. The object of an abortion is to terminate the life of the child. Section 34.5 is an enlightened legislative accommodation to a fait accompli, in the interests of the mother, her unborn child and the community. We do not discern in this section any legislative intent to emancipate minors for the sole reason that they are pregnant.

The fact that the pregnant woman's ‘* * * right to take life takes precedence over any interest the state may have in the unborn’ (People v. Belous, 71 Cal.2d 954, 969, 80 Cal.Rptr. 354, 458 P.2d 194) cannot bar the legislature from enacting humanitarian measures of the most elementary nature in favor of the embryo or foetus which will not be aborted. Petitioners' constitutional argument advanced for the first time in their petition for a rehearing, that the right of the mother to an abortion overrides the unborn child's right to life, not only ignores the limiting provisions of the California Therapeutic Abortion Law, but is also irrelevant to the constitutionally valid, and humanely enlightened purpose of the legislature to encourage the medical care of the unborn. Such is one of the purposes of section 34.5

Other exceptions which eliminate parental consent as a condition to the performance of certain types of medical care have been specifically catalogued and enacted by the legislature. None of these other exceptions emancipate a minor even though they specifically require no parental consent. (Civil Code, §§ 25.5 (blood donations); 25.6 (medical care during and after minor's marriage); 25.7 (medical care while in the armed services); 34.6 (medical care while living away from home); 34.7 (treatment of communicable diseases). The specific scope of these statutes strongly suggests a legislative desire to deal singly and precisely with specific medical problems in respect of which the legislature has weighed the necessity of parental consent as against the proper interest of the minor and the community. This is definitely a function of the legislature and not of the courts.

Section 34.6 which provides in effect that the consent of an emancipated minor ‘15 years of age or older’ is sufficient for all medical service including abortion, was enacted in 1968. If the legislature had intended that pregnancy per se of an unmarried female minor of any age constituted emancipation, it is logical to assume that section 34.6 would have specifically so provided. No one would seriously argue that the legislature by enacting section 34.6 in 1968, a full year after its enactment of the Therapeutic Abortion Act, intended that pregnant minors under 15 could, without consent of a parent, consent to an abortion. Yet this court is being asked to hold that section 34.5 so emancipates pregnant minors, that such minors of any age do not need the consent of a parent to an abortion.

When an attempt was made by the 1970 legislature to extend the rights afforded pregnant minors in section 34.5, nothing was said about abortion. The sole purpose of the proposed amendment was to give to minors an opportunity to prevent pregnancy. The very nature of the proposed 1970 amendment fortifies the legislature's purpose, when in 1953 it enacted section 34.5, to wit: to provide for the health and care of mother and child.2

Carlos asserts that the legislative trend is to encourage minors who require medical care to seek such care without the ‘deterrence’ of seeking parental consent. We reject the suggestion, however, that this court expand the field by amending sections 34.5 or 34.6 to say in effect that pregnancy per se in a minor of any age constitutes emancipation. The legislature had the opportunity to so expand the rights of minors when it enacted the Therapeutic Abortion Act in 19673 , when it enacted section 34.6 (Civil Code) in 1968 and when is attempted to amend section 34.5 in 1970. It did not do so.

Petitioners argue that it should be assumed that when it enacted the Therapeutic Abortion Act, the legislature took no specific steps to limit section 34.5 to ‘simple maternity care, as opposed to abortion care’ and that ‘* * * if the legislature had intended to restrict the language of the statute to exclude [abortion] it could certainly have done so in precise terms.’

The ready answer is that if the law-making branches of our government intended to depart from and expand the purpose of section 34.5 was enacted to serve, or to include pregnancy per se as automatic emancipation in section 34.6, they could have done so in precise language. It is clear that the omission so to do is a calculated one.

It is the function of the courts to construe the law. Petitioners ask us to expand it. (People v. Moore, 229 Cal.App.2d 221, 228, 40 Cal.Rptr. 121.) We cannot agree with petitioners' contention that the ‘care’ of pregnancy under section 34.5 necessarily subsumes its termination. Words should be given their normal, reasonable meaning. (People v. Agnello, 259 Cal.App.2d 785, 791, 66 Cal.Rptr. 571.) To destroy something is the very opposite of ‘caring’ for it. The addition of a fundamentally opposite concept to section 34.5 of the Civil Code is beyond our power and in any event it would be presumptuous on the part of the Court to legislate on a specific subject which could have been properly included in the Therapeutic Abortion Act and appears to have been deliberately omitted.

The laws of other jurisdictions with statutes similar to the California Therapeutic Abortion Act4 support our view. North Carolina,5 Arkansas,6 New Mexico,7 Oregon,8 and Colorado,9 require parental consent before an abortion may be performed on a minor or, in Colorado and New Mexico, on a woman under 18, as does the legislation proposed for enactment in Washington,10 Kansas,11 and Georgia,12 like California,13 included no provision in their therapeutic abortion law concerning this problem. The Maryland Code, while ambiguous, appears to permit a minor to consent to a ‘termination of pregnancy other than by delivery.'14

The petition for a writ of mandate is denied, and the order to show cause is discharged.

I dissent. It is my conclusion that the clear and unambiguous provisions of section 34.5 of the California Civil Code operate to grant to an unmarried, pregnant minor the right, the power and the capacity to give her consent to a therapeutic abortion to be performed in the manner and under the conditions prescribed by the California Therapeutic Abortion Act of 1967 (Health & Saf. Code, § 25950 et seq.), and that the consent of the parent or parents of such an unmarried, pregnant minor is not necessary in order to authorize hospital, medical and surgical care required in the performance of such an abortion.

It seems to me undeniable that the hospital, medical and surgical care necessarily required in the performance of a therapeutic abortion on the consenting minor is ‘related to her pregnancy.’ In determining the legislative intent with reference to the application of section 34.5 to abortions performed under the authority of the Therapeutic Abortion Act of 1967, it is important to bear in mind the indispensable conditions which the Legislature prescribed. These conditions include the requirement that the abortion be performed only in an accredited hospital and the requirement that the Committee of the Medical Staff must find ‘that one or more of the following conditions exist: (1) There is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother; (2) The pregnancy resulted from rape or incest.’

It must be presumed that when the Legislature enacted the Therapeutic Abortion Act of 1967, it was aware of the provisions of section 34.5 of the Civil Code which had been enacted in 1953. Moreover, at the time of the adoption of section 34.5, abortions under certain circumstances had been statutorily permissible in California for over 100 years. Abortions ‘necessary to preserve the mother's life’ were being performed in California hospitals at the time of the adoption of section 34.5. It is a matter of common knowledge that many hospitals maintained therapeutic abortion committees to approve such abortions long prior to the passage of the Therapeutic Abortion Act.

More recent legislation has followed the trend in the direction of giving minors the power in other circumstances to consent and to secure hospital, medical and surgical care without parental consent. For example, section 34.6 of the Civil Code enacted in 1968 provides that a minor 15 years of age or older who is living separate and apart from his parents or legal guardian may consent under prescribed conditions to hospital and other medical, surgical and dental diagnosis or treatment.

Section 34.7, also adopted in 1968, provides that a minor 12 years of age or older who may have come into contact with certain infectious, contagious or communicable diseases may give consent to the furnishing of hospital, medical and surgical care related to the diagnosis or treatment of such disease. Certainly these more recently added provisions of law are entirely consistent with those of section 34.5

In a communication dated May 13, 1970, addressed to State Senator Anthony C. Beilensen, the Legislative Counsel of California expressed the opinion that the following question should be answered in the affirmative: ‘Does an unmarried, pregnant minor have the legal capacity to execute a request and consent for a therapeutic abortion?’ After referring to the provisions of the Therapeutic Abortion Act prescribing the circumstances and conditions under which a lawful abortion may be performed, the Legislative Counsel opines as follows:

‘The effect of the act is to make certain types of abortion noncriminal that were previously criminal. Such abortions are put on the same footing as other types of legal surgery so far as the requirement of consent is concerned. For example, it is, as a general rule, technically an assault and battery, giving rise to liability for damages, to perform surgery on an adult person without that person's consent (Weinstock v. Eissler (1964), 224 Cal.App.2d 212 [36 Cal.Rptr. 537]. The act does not pepeat that rule of law, but such rule would, in our opinion, be applicable to the abortions made noncriminal by the act, just as it is applicable to other legal operations.

‘Generally, parental consent is necessary for performance of surgery on an unmarried minor (see 38 Cal.Jur.2d ‘Physicians, Dentists and Other Healers of the Sick,’ Sec. 66; 70 C.J.S. ‘Physicians and Surgeons' Section 48; Annot., 139 A.L.R. 1370, 1371).

‘The Legislature, however, by Section 34.5 of the Civil Code, has authorized an unmarried, pregnant minor to consent to the furnishing of hospital, medical, and surgical care relating to her pregnancy without the consent of her parent or parents. That section reads as follows:

“34.5. Notwithstanding any other provision of the law, an unmarried, pregnant minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy, and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy.' (Emphasis added.)

‘There are no cases interpreting this section. It authorizes an unmarried, pregnant minor to give consent to the furnishing of hospital, medical, and surgical care related to her pregnancy. A therapeutic abortion involves hospital, medical and surgical care. Since it would terminate the pregnancy, we think that, should the question be presented to the courts, a therapeutic abortion would be held to involve hospital, medical, and surgical care related to the pregnancy of an unmarried minor within the meaning of Section 34.5. Thus, in view of the broad language of Section 34.5, we think that the courts would hold that this provision applies to, and, as a result, removes the necessity of parental consent for, the abortion pursuant to the act of an unmarried, pregnant minor (see California's New Therapeutic Abortion Act: An Analysis and Guide to Medical and Legal Procedure, 15 U.C.L.A. L.Rev. 1, 10).

‘Therefore, it is our opinion that an unmarried, pregnant minor is legally capable of executing a request and consent for a therapeutic abortion, without the necessity of obtaining parental consent. Consequently, an unmarried pregnant minor could give her consent to a therapeutic abortion, assuming that she is not an incompetent.’

I would grant the peremptory writ as prayed.

FOOTNOTES

1.  ‘§ 34.5. Notwithstanding any other provision of the law, an unmarried, pregnant minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy, and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy.’

2.  ‘34.5 Notwithstanding any other provisions of the law, a female minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy or consent to the furnishing of medical care related to the prevention of pregnancy, and such consent shall not be subject to a disaffirmance because of minority. The consent of the parent or parents of such a minor shall not be necessary in order to authorize such hospital, medical and surgical care.’ (Senate Bill No. 542, as amended in Assembly June 24, 1970.) This act was vetoed by the Governor September 20, 1970.

3.  A letter purportedly authored by one of the proponents of California's therapeutic abortion law explains the lack of a provision concerning consent in the following words:‘[N]o hospital will perform surgery on such persons [minors] in California without such [parental] consent, and the bill requires all legal abortions to be done in hospitals.’ (Letter from State Senator Anthony C. Beilensen to author of the Note, The California Therapeutic Abortion Act: An Analysis, 19 Hast.L.J. 242 (1967) at 254.)On oral argument it was stated that Senator Beilenson did not write this letter and did not see it. However, we are not, of course, bound by the opinion expressed in this letter. (In re Lavine, 2 Cal.2d 324, 327, 41 P.2d 161.)

4.  Most of the laws reviewed in this paragraph are similar in content to that proposed by the American Law Institute and the American Medical Association. Moyers, Abortion laws: a study in social change, 7 San Diego Law Review 237 (1970) at 239.

5.  N.C.Gen.St. para. 14–45.1.

6.  Ark.Gen.Stat.Ann. para. 41–305 (supp. 1969).

7.  N.M.Stat.Ann. para. 40A–5–1 (supp. 1969).

8.  Ore.Rev.Stat. para. 435.435(1)(a).

9.  Colo.Rev.Stat.Ann. para. 40–2–50(4)(a)(i) (supp. 1967).

10.  Note, Washington abortion reform, 5 Gonzage L.Rev. 270 (1970) at 286.

11.  Kan.Stat.Ann. para. 21–3407 (supp. 1969)

12.  Ga.Code Ann. para. 26–9925a (supp. 1969).

13.  Footnote 3, supra.

14.  Md.Ann.Code art. 43 para. 149E (supp. 1969).

ROTH, Presiding Justice.

FLEMING, J., concurs.

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