PEOPLE of the State of California, Plaintiff and Appellant, v. Robert W. BARKSDALE, Defendant and Respondent.
Defendant Robert W. Barksdale was charged by a complaint in the Municipal Court of the San Leandro-Hayward Judicial District, with a violation of Penal Code section 274, as amended in 1967, which states:
‘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, which 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 & Safety Code, is punishable by imprisonment in the state prison not less than two nor more than five years.’
The Therapeutic Act, q. v., was enacted in 1967. It provides that a licensed physician and surgeon is authorized to perform an abortion in ‘a hospital which is accredited by the Joint Commission on Accreditation of Hospitals' (Health & Saf. Code, § 25951, subd. (a)), if such abortion is approved in advance by a committee of the hospital's medical staff under certain prescribed conditions (§ 25951, subd. (b)), and the committee finds 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’ (§ 25951, subd. (c)). On the grounds of statutory rape (Pen.Code, § 261, subd. 1) an abortion may be approved only if the girl is under the age of 15 years (§ 25952, subd. (c)). ‘The committee * * * must, in all instances, consist of not less than two licensed physicians and surgeons, and if the proposed termination of pregnancy will occur after the 13th week of pregnancy, the committee must consist of at least three such licensed physicians and surgeons. * * *’ (§ 25953.) The act further provides that an abortion shall not be approved after the 20th week of pregnancy. (§ 25953.)
Prior to any preliminary examination, defendant generally demurred to the complaint, urging that Penal Code section 274, being violative of the Constitution of the United States, failed to state a public offense. The municipal court, stating—‘The court can find no compelling interest of the state, and concludes that the right to choose to bear or not to bear children is a fundamental right of the individual woman to be exercised in any manner she chooses and which may not in any way be abridged by the law’—sustained demurrer and thereafter dismissed the complaint.
The People appealed the judgment of dismissal to the Alameda County Superior Court. (See Pen.Code, § 1466.) That court reversed, but certified ‘that the transfer of [the] case to the Court of Appeal appears necessary to secure uniformity of decision or to settle important questions of law.’ (See Cal.Rules of Court, rules 63 and 64.) We thereupon ordered the cause transferred to this court for hearing and decision.
The parties have chosen to concede in their briefs and oral argument, and at least for the purposes of this appeal, (1) that the charged abortion was performed during the first trimester (13 weeks) of the woman's pregnancy, (2) by a ‘licensed physician and surgeon,’ (3) but not in ‘a hospital which is accredited by the Joint Commission on Accreditation of Hospitals,’ or in any hospital.
Defendant's primary contention is stated in this manner: ‘California Penal Code section 274, beyond requiring that abortions must be performed by medical doctors under medically competent procedures, may not prohibit a woman from aborting her first trimester embryo or fetus.’ More specifically it is urged that the right of a woman to abort an early pregnancy is essentially one of the ‘penumbral’ rights created by the first, Third, Fourth, Fifth and Ninth Amendments, ‘the right of privacy,’ as described and given effect in Griswold v. Connecticut, 381 U.S. 479, 484–485, 85 S.Ct. 1678, 14 L.Ed.2d 510.
Principal reliance is placed by defendant upon certain dicta of People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, which considered the constitutionality of Penal Code section 274, as in effect prior to its 1967 amendment. The earlier statute provided: ‘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, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five years.’ (Emphasis added.)
In Belous the California Supreme Court, divided 4 to 3, concluded that the pre-1967 section 274 was constitutionally invalid, for the reason that its language permitting an abortion only when ‘necessary to preserve [the woman's] life,’ was unconstitutionally ‘vague and uncertain.’ The court went no further in its actual holding.
We shall first discuss the effect to be given dicta of California's Supreme Court by the lesser courts of the state.
Dicta, of course, consists of things said in an opinion that are not necessary in reaching the decision of the court. (See Childers v. Childers, 74 Cal.App.2d 56, 61–62, 168 P.2d 218.) It is held that such ‘statements of conclusions not necessary to the decision are not to be regarded as authority. * * *’ (Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 397, 121 P.2d 829, 837; see also People v. McAllister, 15 Cal.2d 519, 523, 102 P.2d 1072; Hills v. Superior Court, 207 Cal. 666, 670, 279 P. 805.)
Nevertheless, it has been pointed out that the real criticism of dicta ‘goes to those portions of an opinion which assume to determine matters outside the issues, and hence [are] not fully discussed and considered. * * *’ (Estate of Wever, 12 Cal.App.2d 237, 239, 55 P.2d 279, 280.) Where a point, although dictum, is ‘quite elaborately considered’ (Adams v. Seaman, 82 Cal. 636, 639, 23 P. 53), or given ‘full consideration’ (Lossman v. City of Stockton, 6 Cal.App.2d 324, 330, 44 P.2d 397), it will be given respectful consideration by another reviewing court. (See also San Joaquin etc. Irr. Co. v. Stanislaus, 155 Cal. 21, 28, 99 P. 365; Granger v. Sherriff, 133 Cal. 416, 417, 65 P. 873; Paley v. Superior Court, 137 Cal.App.2d 450, 460, 290 P.2d 617; Donnell v. Linforth, 11 Cal.App.2d 25, 29, 52 P.2d 937.) When the dicta is that of our state's Supreme Court this rule must be particularly applicable to its Court of Appeal.
The respect which must be shown such considered comment of the California Supreme Court was elaborated by the United States Supreme Court in Nolan v. Transocean Air Lines, 365 U.S. 293, 295, 81 S.Ct. 555, 557, 5 L.Ed.2d 571. There the court found ‘considered [relevant] dictum’ in the case of Leeper v. Beltrami, 53 Cal.2d 195, 1 Cal.Rptr. 12, 347 P.2d 12. It was said: ‘Inasmuch as the view expressed therein by the highest court of California may be decisive of an issue critical to petitioners' claims, and inasmuch as the Court of Appeals for the Second Circuit is charged with mandatory appellate review in the present case, that court should decide what relative weights, as authoritative sources for ascertaining California law, the New York Court of Appeals would accord to the Sears-Haro line [Sears v. Majors, 104 Cal.App. 60, 285 P. 321; Haro v. Southern P. R. Co., 17 Cal.App.2d 594, 62 P.2d 441] (direct holdings of District Courts of Appeal between 1930 and 1938) and to Leeper (a considered, relevant dictum of general scope by the California Supreme Court in 1959). We set aside the judgment of the Court of Appeals and remand to that court for reconsideration of the case in light of the new factor introduced by Leeper v. Beltrami, supra.’
The California Supreme Court in People v. Belous, supra, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, was of course speaking in the context of a law generally denying a woman's right to an abortion. It was said (p. 963, 80 Cal.Rptr. p. 359, 458 P.2d p. 199): ‘The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a ‘right of privacy’ or ‘liberty’ in matters related to marriage, family, and sex.'1 And speaking of the right of a woman to choose whether to bear children, the court stated (p. 964, 80 Cal.Rptr. p. 360, 458 P.2d p. 200), ‘It is not surprising that none of the parties who have filed briefs in this case have disputed the existence of this fundamental right.’
The court continued (p. 964, 80 Cal.Rptr. p. 360, 458 P.2d p. 200): ‘The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state * * *, whether the regulation is ‘necessary * * * to the accomplishment of a permissible state policy’ * * *, and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of ‘unlimited and indiscriminate sweep’ * * *.'2
The Belous court then proceeded to discuss the several suggested ‘compelling’ state interests in the suppression of abortions.
First considered was the unquestioned state interest in the health and well-being of the pregnant woman. It was pointed out (in the course of a scholarly study, see generally pp. 964–965, 80 Cal.Rptr. pp. 360–361, 458 P.2d pp. 200–201) that ‘When California's first anti-abortion statute was enacted, any surgical procedure which entered a body cavity was extremely dangerous. Surgeons did not know how to control infection, and mortality was high. [Citation.] In 1867, Joseph Lister first published his findings on antiseptic surgery * * *, but even in 1883 the techniques he developed were condemned * * *, and as late as 1895 were not well understood or properly applied by even leaders of the medical profession. [Citations.] [¶] Although development was slow, techniques of antisepsis and asepsis became major general advances in surgery at and after the turn of the century. In due course safe procedures were developed for specific operations. Curettage, used for abortion in the first trimester, became a safe, accepted and routinely employed medical technique, especially after antibiotics were developed in the early 1940's. [Citation.] It is now safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child.’
Suggesting that the health of the pregnant woman may have been a compelling state interest bolstering the state's early antiabortion law, the court added (p. 976, 80 Cal.Rptr. p. 362, 458 P.2d p. 202): ‘Although we may assume that the law was valid when first enacted, the validity of the law in 1850 does not resolve the issue of whether the law is constitutionally valid today. [Citations.]’
We note the emphasis of Belous that its study indicated that the relative safety of present day medical techniques exists when the therapeutic abortion occurs during the earlier period of the pregnancy. The court strongly implied that a compelling state interest in the health of the woman, justifying a statutory proscription of abortions, does exist at some later stage of the pregnancy.
The court then discussed the dangers of so-called ‘criminal abortions,’ i. e., those prohibited by section 274 and usually performed by unlicensed persons. It was said (pp. 965–966, 80 Cal.Rptr. p. 361, 458 P.2d p. 201):
‘Although abortions early in pregnancy and properly performed present minimal danger to the woman, criminal abortions are ‘the most common single cause of maternal deaths in California.’ [Citation.] In California, it is estimated that 35,000 to 100,000 such abortions occur each year. [Citation.]
‘The incidence of severe infection from criminal abortion is very much greater than the incidence of death. The Los Angeles County Hospital alone, for example, in 1961 admitted over 3,500 patients treated for such abortions. [Citation.] Possibly more significant than the mere incidence of infection caused by criminal abortions is the result of such infection. ‘Induced Illegal Abortion * * * is one of the important causes of subsequent infertility and pelvic disease.’ [Citations.]
‘Amici for appellant, 178 deans of medical schools, including the deans of all California medical schools, chairmen of medical school departments, and professors of medical schools state: ‘These recorded facts bring one face-to-face with the hard, shocking—almost brutal—reality that our statute designed in 1850 to protect women from serious risks to life and health has in modern times become a scourge.’'
The Belous court also considered the argument that the state has ‘a compelling interest in protection of the embryo and fetus.’ (P. 967, 80 Cal.Rptr. p. 362, 458 P.2d p. 202.) It appeared to recognize that at some stage of pregnancy the state did acquire such an interest, even to the exclusion of the conflicting right of the woman. (See pp. 967–969, 80 Cal.Rptr. 354, 458 P.2d 194.) But the court made it clear that a woman's right to choose whether to bear children must prevail over such a state right in the pregnancy's early stage.
It was not contended by the People in Belous, and it is not contended here, that any legitimate state interest requires a larger or expanding population, at least as against the right of a woman to choose whether to bear children. Such a contention, if made, would seem to run contrary to reason in the light of scientific knowledge and the world's present day and projected population problems.
It must be said that the text of Belous which we have discussed discloses thorough and thoughtful consideration of the rights of a pregnant woman, vis-a-vis the state, in the matter of abortion legislation. Under the authority we have cited, ante, and as an intermediate appellate court of this state, we feel obliged to respect the dicta of Belous and to accept it as a correct expression of the law.
Several federal district courts have paid similar respect to the discussion of Belous.
Doe v. Scott (1971) 321 F.Supp. 1385, 1388 (N.D.Illinois, E.D.), concerned an attack on the constitutionality of an Illinois statute which prohibited all abortions except those “performed by a physician * * * in a licensed hospital * * * because necessary for the preservation of the woman's life.” The issue presented was (p. 1390) ‘whether the state has a compelling interest in preventing abortions in the early stages of pregnancy * * *.’ The majority of a three-judge court, relying heavily on Belous, ruled (p. 1391): ‘* * * that during the early stages of pregnancy—at least during the first trimester—the state may not prohibit, restrict or otherwise limit women's access to abortion procedures performed by licensed physicians operating in licensed facilities.’ The pertinent statute was held unconstitutional insofar as it restricted or prohibited the ‘performance of abortions during the first trimester of pregnancy by licensed physicians in a licensed hospital or other licensed medical facility.’
In Roe v. Wade (1970) 314 F.Supp. 1217 (N.D.Tex.) a Texas anti-abortion law was under constitutional attack. The statute made felonious any abortion not required ‘for the purpose of saving life of the mother.’ Belous was interpreted (p. 1222) as according ‘Freedom to choose in the matter of abortions * * * the status of a ‘fundamental’ right.' The Texas statute was found to infringe upon this fundamental right, the three-judge court stating:
‘While the Ninth Amendment right to choose to have an abortion is not unqualified or unfettered, a statute designed to regulate the circumstances of abortions must restrict its scope to compelling state interests. There is unconstitutional overbreadth in the Texas Abortion Laws because the Texas Legislature did not limit the scope of the statutes to such interests. On the contrary, the Texas statutes, in their monolithic interdiction, sweep far beyond any areas of compelling state interest.’ (P. 1223.)
The court recognized a probable legitimate state concern over ‘abortion of the ‘quickened’ fetus.' (P. 1223.) However, it said: ‘The difficulty with the Texas Abortion Laws [under consideration] is that, even if they promote these interests, they far outstrip these justifications in their impact by prohibiting all abortions except those performed ‘for the purpose of saving the life of the mother.’'
Belous (71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194) was again relied upon by a three-judge court in Babbitz v. McCann (1970) 310 F.Supp. 293 (E.D.Wis.) wherein a Wisconsin abortion statute was declared violative of the United States Constitution. That statute proscribed abortions unless necessary to save the life of the mother, in which case it must be performed by a physician and, unless ‘an emergency prevents,’ in a licensed maternity hospital. The court (pp. 301, 302) quoted the following language of Belous: “The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state * * *.” and then continued:
‘Similarly, in the case at bar, we must decide whether the state of Wisconsin has a sufficiently compelling interest to justify the broad restriction on a woman's inherently personal right that is contained in § 940.04(1) and (5), Wis.Stats.
‘The defendants urge that the state's interest in protecting the embryo is a sufficient basis to sustain the statute. Upon a balancing of the relevant interests, we hold that a woman's right to refuse to carry an embryo during the early months of pregnancy may not be invaded by the state without a more compelling public necessity than is reflected in the statute in question. When measured against the claimed ‘rights' of an embryo of four months or less, we hold that the mother's right transcends that of such an embryo.’
‘[P. 302.] Under its police power, the state can regulate certain aspects of abortion. Thus, it is permissible for the state to require that abortions be conducted by qualified physicians. The police power of the state does not, however, entitle it to deny to a woman the basic right reserved to her under the ninth amendment to decide whether she should carry or reject an embryo which has not yet quickened. The challenged sections of the present Wisconsin statute suffer from an infirmity of fatal overbreadth.’
It is to be noted that Doe v. Scott, supra, Roe v. Wade, supra, and Babbitz v. McCann, supra, as well as Belous, place heavy emphasis on the woman's right to an abortion during the early period of the pregnancy. Expressly or impliedly they assert that at some point during pregnancy the woman's right must yield to the state interest in the preservation of the fetus. Roe v. Wade, 314 F.Supp. 1217 suggests that this state interest becomes paramount with the ‘quickened fetus.’ And as noted, answering the argument that the state has such an interest in the protection of the embryo as to sustain an abortion statute, the court in Babbitz v. McCann stated that the woman's right transcended that of an embroy of four months or less.
This special consideration of the law for the advanced fetus is well documented historically. Courts and Legislatures, in varying contexts, have traditionally demonstrated greater concern for the ‘quickened’ unborn child.3 A sampling of such authority follows. In ancient English law the killing of the fetus of a ‘woman quick with childe’ was manslaughter; later common law provided as one of the elements of abortion murder that ‘the foetus [be] quickened.’ Without such quickening the crimes did not appear to lie. (See Keeler v. Superior Court, supra, 2 Cal.3d 619, 626, 87 Cal.Rptr. 481, 470 P.2d 617.) An 1829 statute of New York provided that: “The wilful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.” (Idem, p. 628, 87 Cal.Rptr. p. 485, 470 P.2d p. 621.) An early Wisconsin statute (Wis.R.S.1849, ch. 133) made abortion a punishable offense only if performed upon an unborn ‘quick’ child. A present day statute of the same state (Wis.Stats. § 940.04) provides a much greater penalty for aborting an ‘unborn quick child,’ than for an abortion on an ‘unborn child.’ And as we have seen, the court in Roe v. Wade, supra, 314 F.Supp. 1217, expressed the state concern over abortion of the ‘quickened’ fetus.
From a consideration of Belous and the other authority we have referred to, we are impelled to conclude that a woman has a constitutional right to terminate her pregnancy, subject only to reasonably imposed state restrictions designed to safeguard the health of the woman, and to protect the advanced fetus.
We now direct our inquiry into the reasonableness of the restrictions imposed by the Therapeutic Abortion Act on the woman's right to an abortion.
The first question is whether the provisions requiring an abortion to be performed by a licensed physician and surgeon in a hospital accredited by the Joint Commission on Accreditation of Hospitals are reasonably calculated to safeguard the woman's health and well-being.
It is obvious that without the surgical training and expertise of a licensed physician and surgeon an abortion would endanger the health and even life of the woman; no contention to the contrary is made. But the defendant strenuously insists that the place of an abortion operation, as with any other surgical procedure, should be determined by the doctor, in consultation with his patient, uncontrolled by law and in accordance with sound and established medical procedure. He contends that the legislative requirement of a hospital unnecessarily and unreasonably abridges the constitutional right for which he here argues.
We advert again to the scholarly dissertation of Belous. There the court concluded that it was ‘now safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child.’ (Emphasis added.) (71 Cal.2d at p. 965, 80 Cal.Rptr. at p. 361, 458 P.2d at p. 200.) Its studies had indicated that ‘in California from November 1967 through September 1968, 3,775 therapeutic [hospital] abortions were reported without a maternal death. * * * ’ (P. 965, fn. 7, 80 Cal.Rptr. p. 361, 458 P.2d p. 201.) On the other hand, during one year alone over 3,500 women with severe infection resulting from illegal nonhospital abortions were found to have been treated in one Los Angeles hospital. (P. 966, 80 Cal.Rptr. 354, 458 P.2d 194.) And such illegal non-hospital abortions were disclosed to be “the most common single cause of maternal deaths in California.” (P. 965, 80 Cal.Rptr. p. 354, 458 P.2d p. 201.)
For obvious reasons women seeking abortions often wish to keep knowledge of this fact from others, particularly their families and friends. Given the choice of hospital or more private surroundings they would more often choose the latter, for a hospital stay with its relative lack of privacy and its attendant records is far more likely to become commonly known. Such consideration would tend to place undue pressure on the doctor to arrange an inadequate medical environment, even when his medical judgment indicates the need of a hospital situs for the operation.
We note that in Doe v. Scott, supra, 321 F.Supp. 1385, 1391, the court found a statutory requirement that a constitutionally permitted abortion be ‘performed by licensed physicians operating in licensed facilities' (emphasis added) not to be unreasonably restrictive. And the court in Roe v. Wade, supra, 314 F.Supp. 1217, 1223, found a legitimate state interest ‘in seeing to it that abortions are performed by competent persons and in adequate surroundings.’ (Emphasis added.)
We conclude that the licensed ‘physician and surgeon’ and the ‘hospital’ requirements of the Therapeutic Abortion Act are reasonably designed by the Legislature to further the health and welfare of the pregnant woman seeking an abortion.
Pointing to the act's requirement of a hospital accredited by the Joint Commission an Accreditation of Hospitals, defendant insists that in any event this constitutes ‘overbreadth,’ and constitutional vulner-ability.
We first observe that in California all hospitals must be licensed by the State Department of Public Health. (Health & Saf. Code, § 1400.) The department is required to make and promulgate reasonable rules and regulations ‘prescribing minimum standards of safety and sanitation * * * [and] of diagnostic, therapeutic and laboratory facilities and equipment * * *.’ (Health & Saf. Code, § 1411.) Hospitals must be periodically inspected by the department (Health & Saf. Code, § 1407), in which authority is vested to suspend or revoke a hospital license for, among other things, violation of the prescribed rules and regulations (Health & Saf. Code, § 1412).
We note further that the Joint Commission on Accreditation of Hospitals is a private body composed of members and organizations of the medical profession. Its purpose is to maintain and supervise professional standards in accordance with its ‘Standards for Hospital Accreditation.’ While most of California's hospitals appear to be ‘accredited,’ it nevertheless appears that many, even county hospitals, lack such accreditation and are therefore unavailable for the otherwise legitimate purpose of the Therapeutic Abortion Act.
As we have concluded, a woman has a constitutional right to terminate a pregnancy subject to reasonably enacted legislative restrictions supporting legitimate state interests. By its ‘accredited hospital’ provision the Legislature has delegated to a private organization power to determine the hospital standards under which abortions may be performed. It is established law that a Legislature may not delegate its legislative power to a private person or organization. (Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570; Daigh v. Shaffer, 23 Cal.App.2d 449, 73 P.2d 927. See also 16 Am.Jur.2d, Constitutional Law, § 249, p. 499; 16 C.J.S. Constitutional Law § 137, pp. 566–567; and see the authorities in those works cited.) This rule must apply with even greater force to a legislative delegation of power affecting a constitutionally guaranteed right.
It appears that an abortion is now a relatively simple and safe surgical procedure. (See discussion, People v. Belous, supra, 71 Cal.2d 954, 965–967, 80 Cal.Rptr. 354, 458 P.2d 194.) Yet, although any other surgical procedure, no matter how intricate or demanding or dangerous, may be performed in a ‘licensed’ hospital, abortions alone must under the act be performed under the higher or different standards of an ‘accredited hospital.’
Further, it is obvious that the ‘accredited hospital’ provision decreases the number of hospitals available for abortion procedures. And the requirement must, in many cases, unnecessarily increase the distance to the hospital and otherwise inconvenience the physician and surgeon and his patient seeking an abortion.
We conclude that the accredited hospital provision imposes an unnecessary and unreasonable restraint upon the constitutionally guaranteed right under discussion.
We also find the act's requirement of approval of an abortion in advance by a committee of the hospital's medical staff to be without reasonable constitutional justification. The obvious principal purpose of this requirement is to assure that a statutory condition permitting an abortion, i. e., danger to the woman's health, or rape, or incest, exists. As we have shown, no compelling state interest can be found in this area. To the extent that the committee might provide additional assurance that the woman's health would not be adversely affected by the operation we also find no compelling state interest. It will reasonably be presumed that the woman's health would be considered and safeguarded by her physician and surgeon.
The act's provision that no abortion be allowed after the twentieth week of pregnancy undoubtedly rests upon legislative consideration for the protection of the quickened fetus, as well as the greater danger to the woman attending the abortion of an advanced pregnancy. This restriction, we believe, is reasonably supported by the compelling state interests we have discussed.
No merit is found in defendant's contention that he and his patient were denied equal protection of the law. (Cf., Babbitz v. McCann, supra, 310 F.Supp. 293, 298.) And we find nothing resembling a bill of attainder in the subject statutes. Other points raised by defendant, because of the conclusions we have reached, have become moot to a determination of his appeal.
It is established law that “When part of a statute is declared unconstitutional, the remainder will stand if it is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute.” (In re Perez, 65 Cal.2d 224, 231, 53 Cal.Rptr. 414, 418, 418 P.2d 6, 11.) ‘The test of severability is whether the invalid parts of the statute can be severed from the otherwise valid parts without destroying the statutory scheme, or the utility of the remaining provisions. * * *’ (Blumenthal v. Board of Medical Examiners, 57 Cal.2d 228, 238, 18 Cal.Rptr. 501, 506, 368 P.2d 101, 106.) Applying these rules we conclude that the unconstitutional features of Penal Code section 274 and the Therapeutic Abortion Act which we have pointed out are severable from the remainder of the statutes.
We hold that Penal Code section 274 and the Therapeutic Abortion Act are unconstitutional insofar as they purport to deny, or impose restrictions upon, a woman's right to terminate her pregnancy within its first 20 weeks by an abortion which is performed by a licensed physician and surgeon in a licensed hospital of this state.
From all of the foregoing it appears that the municipal court complaint which, among other things, by legal implication charges that the subject abortion was not performed in a hospital, does allege the commission of a public offense by defendant. The sustaining of his demurrer by the municipal court was error.
The judgment of dismissal by the municipal court is reversed.
I concur and dissent. I concur in the determination that the complaint states a public offense and that, therefore, the judgment of dismissal by the municipal court must be reversed. I do not, however, concur in the majority holding that a woman has the constitutional right to terminate pregnancy by abortion subject only to the conditions that such abortion must take place within the first 20 weeks of pregnancy and that it be performed by a licensed physician and surgeon in a licensed hospital in this state; nor do I concur in the determination that Penal Code section 274 and the Therapeutic Abortion Act (Health & Saf. Code, §§ 25950–25954) are unconstitutional in the respects indicated by the majority.
The effect of the majority opinion is to remove from the Therapeutic Abortion Act, as constitutionally invalid, the requirements that an abortion may be performed only when the pregnancy would gravely impair the physical or mental health of the mother or the pregnancy resulted from rape or incest, and the requirement that an abortion must take place in an accredited hospital with the prior approval of the hospital's therapeutic abortion committee.
It should be noted, initially, that a statute is presumed to be constitutional unless its unconstitutionality clearly and unmistakably appears that all intendments are in favor of its validity, and that mere doubt is not a sufficient reason for a judicial declaration of its invalidity. (Fox etc. Corp. v. City of Bakersfield, 36 Cal.2d 136, 141, 222 P.2d 879; Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 484, 171 P.2d 21; Jones-Hamilton Co. v. Franchise Tax Bd., 268 Cal.App.2d 343, 349, 73 Cal.Rptr. 896; People v. Aguilar, 257 Cal.App.2d 597, 601.) As observed in United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 1298, 28 L.Ed.2d 601, 608, ‘statutes should be construed whenever possible so as to uphold their constitutionality.’
In People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, on whose dicta the majority opinion relies, the Supreme Court observed that it did not have to reach the issue of the constitutional validity of the Therapeutic Abortion Act because the abortion in that case had been performed prior to the adoption of the act. (At p. 973, fn. 15, 80 Cal.Rptr. 354, 458 P.2d 194.) A close reading of the case indicates, however, that the reviewing court deemed that the state has a compelling interest in regulating abortions. Implicit throughout the decision is the concept that abortions may be limited by the state if the statute is sufficiently clear and narrowly drawn. I perceive that although the court had ample opportunity in Belous to strike down abortion laws in general it did not do so. Instead it simply found that Penal Code section 274, as it read when the conduct there under consideration occurred, contained vague and uncertain provisions which jeopardized its operation by placing an unfair and dangerous responsibility upon any medical practitioner who attempted to follow it.1 (At pp. 972–973, 80 Cal.Rptr. 354, 458 P.2d 194.)
In reaching its conclusion with respect to the validity of the Therapeutic Abortion Act the majority seizes upon the statement in Belous that ‘The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a ‘right of privacy’ or ‘liberty’ in matters related to marriage, family, and sex. [Citations.]' (71 Cal.2d at p. 963, 80 Cal.Rptr. at p. 359, 458 P.2d at p. 199.) My colleagues interpret this statement to mean that a woman has a fundamental right to have an abortion subject only to the condition that it be performed in a licensed hospital by a licensed doctor.
None of the cases cited as authority by Belous for the principle embraced in the subject statement, including Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, stands for the proposition that a woman has an unqualified right to have an abortion or that she has such a right subject to appropriate medical procedures. At most these cases hold that a woman can choose whether or not she wishes to conceive a child. Adverting to Griswold, I perceive that its holding was limited to a declaration that a statute forbidding the use of contraceptives violates the right of marital privacy guaranteed by several fundamental constitutional guarantees specified in the Bill of Rights. (Pp. 484–485, 85 S.Ct. 1678.)2
Contrary to the implications of the majority opinion, Belous lays great stress upon the prospective mother's health and the criteria of good medical practice as valid standards for determining whether an abortion is lawful. (At pp. 965–971, 80 Cal.Rptr. 354, 458 P.2d 194.) Recognition is specifically given to the test established in the Therapeutic Abortion Act, i. e. that abortion is permissible during the first 20 weeks of pregnancy if performed by a licensed physician in an accredited hospital and if it is determined ‘under prescribed procedures' that there is a substantial risk that the continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the pregnancy resulted from rape or incest. (71 Cal.2d at p. 971, 80 Cal.Rptr. 354, 458 P.2d 194; emphasis added.)
In Belous there is specific recognition of the necessity than an abortion be performed in a hospital providing an accepted surgical environment. The dangers posed by a nonhospital abortion were noted thusly: ‘Although abortions early in pregnancy and properly performed present minimal danger to the woman, criminal abortions [i. e., those obtained other than from a physician in an accepted surgical environment] are ‘the most common single cause of maternal deaths in California.’ [Citation.]' (At p. 965 and fn. 8 at p. 965, 80 Cal.Rptr. at p. 361, 458 P.2d at p. 201.)
In Ballard v. Anderson, 4 Cal.3d 873, 95 Cal.Rptr. 1, 484, P.2d 1345, the Supreme Court, although not specifically called upon to pass on the constitutional validity of the Therapeutic Abortion Act, did, by its analysis and application of the provisions of the act to the facts at hand, give its stamp of approval to the act. Thus, in Ballard, we find the following significant language: ‘A legal therapeutic abortion under the act may be given only if qualified medical opinion finds (1) a substantial risk that continuance of the pregnancy will impair the mental or physical health of the prospective mother, or (2) that the pregnancy resulted from rape or incest.’ (At P. 879, 95 Cal.Rptr. at p. 5, 484 P.2d at p. 1349; emphasis added.)
In Ballard the question presented was whether the Therapeutic Abortion Committee of a hospital was required to consider the application of a minor for a therapeutic abortion without the consent of her parents. The reviewing court held that such consent was not necessary and that mandamus lies to compel such a committee to exercise its discretion to approve or disapprove a minor's application for abortion ‘according to the statutory criteria set forth in Health and Safety Code, sections 25951–25954.’ (4 Cal.3d at p. 884, 95 Cal.Rptr. at p. 9, 484 P.2d at p. 1353.) It is reasonable to assume that the Supreme Court would not have issued the peremptory writ if it had any misgivings that the requirement of prior approval of an abortion by a committee of a hospital's medical staff was an unconstitutional provision or that the court's direction was nothing more than an idle act.
I apprehend that Belous and Ballard clearly recognize a compelling state interest in protecting the health of a pregnant mother and that the Therapeutic Abortion Act is a salutary method of insuring such protection pursuant to the state's traditional police power to restrict medical operating in sanitary facilities under safe conditions.
It should be noted here that in United states v. Vuitch, supra, 402 U.S. 62, 73, 91 S.Ct. 1294, 1300, 28 L.Ed.2d 601, 610, a case decided subsequent to Belous, the United States Supreme Court held that a District of Columbia statute, 22 D.C.Code § 201,3 containing language similar to that struck down in Belous, was not constitutionally vague. Significant to the consideration of the instant discussion is the following statement in Vuitch: ‘The statute does not outlaw all abortions, but only those which are not formed under the direction of a competent, licensed physician, and those not necessary to preserve the mother's life or health.’ (402 U.S. at p. 70, 91 S.Ct. at p. 1298, 28 L.Ed.2d at p. 608.)
In my opinion the state also has a compelling interest to protect the embryo or fetus as the center of legal rights. There is abundant and respected authority for the proposition that at some time during the period of gestation the embryo or fetus becomes a human being entitled to the right of life. Among these are those who hold that human life begins at conception upon the thesis that the genes of the ovum and sperm have every characteristic a human being will ever have as soon as they are united. Others are of the opinion that human life begins at a time during the period of gestation when the fetus takes on a truly human appearance.
There is also abundant and respected contrary authority to the effect that the embryo or fetus is not a human being during the period of gestation, and that human life does not begin until the fetus has developed into a being that is able to live outside the uterus. Until then, say those who hold this opinion, the fetus enjoys no rights and such rights are are generally attributed to it reflect only the interest of the parents. (See People v. Belous, supra, 71 Cal.2d 954, 967–968, 80 Cal.Rptr. 354, 458 P.2d 194.)
These propositions appear to be of such generalized and universal knowledge that their existence is beyond dispute so as to require that judicial notice be taken of them. (Evid.Code, § 451, subd. (f).) At the very least they are propositions whose proposals are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. As such they are matters which may be judicially noticed. (Evid.Code, § 452, subd. (h).)
In the instant case the trial court in passing upon the sufficiency of the complaint took judicial of these conflicting viewpoints since the matters embraced therein came to the attention of the court in its consideration of the points and authorities submitted by the parties upon the hearing of the demurrer. (See Evid.Code, §§ 453, 454, 455.) This the trial court was justified in doing since matters which must or may be judicially noticed are a part of the complaint to be read into it together with the matters contained within its four corners. (South Shore Land Co. v. Petersen, 226 Cal.App.2d 725, 742–747, 38 Cal.Rptr. 392; Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 63–64, 42 Cal.Rptr. 473.) As indicated by the trial court in its ‘Decision on Demurrer’ these viewpoints were considered by it. In its decision the trial court adopted as part of its rationale the proposition that life is not present in the embryo at conception and apparently adopted, as a legal proposition, the concept that the fetus is not a human being until it is capable of life out of the mother's womb.
Among the matters called to the attention of the trial court in connection with the aforementioned viewpoints as to when human fife begins was evidence adduced at legislative hearings in 1962 to the effect that human life begins at the time of conception. It is inconceivable that the Legislature which enacted the Therapeutic Abortion Act in 1967 did not have before it this proposition as well as the varying and conflicting viewpoints mentioned above.
As a reviewing court, this court is justified in taking judicial notice of each matter properly noticed by the trial court. (See Evid.Code, § 459; Smith v. Hatch, 271 Cal.App.2d 39, 49, 76 Cal.Rptr. 350.) This court is also entitled to consider the facts as they appear on the face of the Therapeutic Abortion Act, since the construction of a statute and its applicability to a given situation are matters of law, and we are not bound by the trial court's construction. (Estate of Madison, 26 Cal.2d 453, 456, 159 P.2d 630; Neal v. State of California, 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839; Plum v. City of Healdsburg, 237 Cal.App.2d 308, 313, 46 Cal.Rptr. 827.)
Accordingly, it appears to me that in enacting the subject act the state clearly evinced a genuine interest and concern for the unborn. That such was the legislative intent is demonstrated by the provisions of the act which limit abortions to cases where the continuance of the pregnancy would gravely impair the physical and mental health of the mother and to those cases where the pregnancy results from rape or incest. If the Legislature had no interest in the embryo or fetus it could simply have provided that a woman was entitled to have an abortion subject only to certain approved medical procedures. The act, however, clearly outlaws all abortions except those performed according to the limitations therein delineated——limitations which Belous recognizes to be properly within the police power of the state.
It is logical to deduce from the facts as appear on the face of the enactment that it was the legislative intent to give the rights of the pregnant woman whose physical or mental health was gravely endangered or whose pregnancy resulted from rape or incest precedence over the rights of the unborn only during the first 20 weeks of pregnancy. It is also logical to deduce from the enactment that it was the legislative intent to outlaw abortions after the 20th week of pregnancy because of the concomitant compelling interest the state has in the health and welfare of the prospective mother and the fetus she is carrying. Belous points out that a hospital therapeutic abortion is a relatively safe procedure in the first trimester of pregnancy (at p. 965, 80 fCal.Rptr. 354, 458 P.2d f194), but takes cognizance that ‘By limiting [in the Therapeutic Abortion Act] the abortion to the first 20 weeks, the Legislature has taken into account the danger to the mother of the later abortion * * *.’ (At p. 971, 80 Cal.Rptr. at p. 365, 458 P.2d at p. 205.)
In sum, the Therapeutic Abortion Act discloses by its provisions a concern for a pregnant woman's health and the risks of death due to an abortion, a concern that a woman who is the victim of an unwanted pregnancy should not be compelled to give birth to a child so conceived, and a concern for an unborn child's right to life. All of these considerations entered into the legislative process and the resulting legislation was clearly an attempt to reconcile the rights of the prospective mother and those of the embryo or fetus as a human being entitled to life. In the specific instances in which abortions are permitted under the act the Legislature, under its prerogative to determine the wisdom or necessity of the law, has declared that the mother4's rights transcend those of the embryo or fetus.
In reaching this conclusion I am not unmindful of the dictum in Belous that ‘There is nothing to indicate that in adopting the Therapeutic Abortion Act the Legislature was asserting an interest in the embryo.’ (71 Cal.2d at p. 971, 80 Cal.Rptr. at p. 365, 458 P.2d at p. 205.) A reading of Belous discloses, however, that the decision does not completely reject the concept that the embryo or fetus is a center of legal rights but postulates that a pregnant woman's right to life takes precedence over any interest the state may have in the unborn. (At p. 969, 80 Cal.Rptr. 354, 458 P.2d 194.)
For the reasons indicated the Therapeutic Abortion Act must be construed so as to uphold its constitutionality. The termination of pregnancy is not an unqualified right beyond regulation by the state, but subject to reasonable limitations consonant with the state's compelling interest in the health and welfare of the prospective mother and the protection of the embryo or fetus. California has imposed valid limitations in its enactment of the act. Since the act is constitutional in its entirely, it is not the province of this court to weigh the desirability of the social policy underlying it or to question its wisdom. These are purely legislative matters.
1. The Belous court's citation of authority to this proposition follows (pp. 963–964, 80 Cal.Rptr. pp. 359–360, 458 P.2d pp. 199–200):‘(See, e. g., Griswold v. Connecticut, supra, 381 U.S. 479, 485, 486, 500, 85 S.Ct. 1678, 14 L.Ed.2d 510, 515, 516, 524; Loving v. Virginia (1967) 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010, 1018 [statute prohibiting interracial marriages, violative of due process clause]; Skinner v. Oklahoma (1942) 316 U.S. 535, 536, 541, 62 S.Ct. 1110, 86 L.Ed. 1655, 1657, 1660 [sterilization laws; marriage and procreation involve a ‘basic liberty’]; Pierce v. Society of Sisters (1925) 268 U.S. 510, 534–535, 45 S.Ct. 571, 69 L.Ed. 1070, 1077–1078, 39 A.L.R. 468 [prohibition against nonpublic schools; same]; Meyer v. Nebraska (1923) 262 U.S. 390, 399–400, 43 S.Ct. 625, 67 L.Ed. 1042, 1045–1046, 29 A.L.R. 1446 [prohibition against teaching children German language; same]; Perez v. Sharp, 32 Cal.2d 711, 715, 198 P.2d 17; see also Custodio v. Bauer, 251 Cal.App.2d 303, 317–318, 59 Cal.Rptr. 463.) That such a right is not enumerated in either the United States or California Constitutions is no impediment to the existence of the right. (See, e. g., Carrington v. Rash (1965) 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675, 680 [fundamental] but nonenumerated right to vote]; Aptheker v. Secretary of State (1964) 378 U.S. 500, 505–506, 84 S.Ct. 1659, 12 L.Ed.2d 992, 996–997, and Kent v. Dulles (1958) 357 U.S. 116, 125, 78 S.Ct. 1113, 2 L.Ed.2d 1204, 1209 [right to travel]; Bolling v. Sharpe (1954) 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884, 887 [right to attend federal unsegregated schools]; Otsuka v. Hite, 64 Cal.2d 596, 602, 51 Cal.Rptr. 284, 414 P.2d 412 [right to vote]; cf. Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 199, 58 Cal.Rptr. 520.)'
2. The text of the above with cited authority follows:‘The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state (Shapiro v. Thompson (1969) 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600, 615; Sherbert v. Verner (1963) 374 U.S. 398, 403, 89 S.Ct. 1790, 10 L.Ed.2d 965, 969), whether the regulation is ‘necessary * * * to the accomplishment of a permissible state policy’ (McLaughlin v. Florida (1964) 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222, 230; see also, N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405, 421; Bates v. Little Rock (1960) 361 U.S. 516, 527, 80 S.Ct. 412, 4 L.Ed.2d 480, 488; Huntley v. Public Utilities Com., 69 Cal.2d 67, 74, 69 Cal.Rptr. 605, 442 P.2d 685; Vogel v. County of Los Angeles, 68 Cal.2d 18, 21, 64 Cal.Rptr. 409, 434 P.2d 961; People v. Woody, 61 Cal.2d 716, 718, 40 Cal.Rptr. 69, 394 P.2d 813), and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of ‘unlimited and indiscriminate sweep’ (Shelton v. Tucker (1960) 364 U.S. 479, 490, 81 S.Ct. 247, 5 L.Ed.2d 231, 238; see also, Cantwell v. Connecticut (1940) 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213, 1220, 128 A.L.R. 1352; In re Berry, 68 Cal.2d 137, 151, 65 Cal.Rptr. 273, 436 P.2d 273; In re Hoffman, 67 Cal.2d 845, 853–854, 64 Cal.Rptr. 97, 434 P.2d 353).'
3. Webster's New International Dictionary (2d ed.) Unabridged, defines ‘quickening’ as ‘The first motion of the fetus in the uterus felt by the mother, occurring usually about the middle of the term of pregnancy.’ In Keeler v. Superior Court, 2 Cal.3d 619, 624, fn. 1, 87 Cal.Rptr. 481, 483, 470 P.2d 617, 619, the court concluded: ‘The average full-term pregnancy is 40 weeks.’
1. Section 274 of the Penal Code then read as follows: ‘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, unless the punishable by imprisonment in the State prison not less than two nor more than five years.’
2. Two of the cases cited in Belous deal particularly with the right to have offspring as a right which is basic to the perpetuation of a race. In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, the United States Supreme Court struck down a statute of Oklahoma which provided for the sterilization of persons defined to be ‘habitual criminals.’ The court there made this statement: ‘We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.’ (At p. 541, 62 S.Ct. at p. 1113.) In Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, the United States Supreme Court declared unconstitutional a Virginia statute which prevented marriages between persons solely on the basis of racial classifications. In that case we find this statement: ‘Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.' (At p. 12, 87 S.Ct. at p. 1824.) It is clear that these two cases were concerned with procreation rather than the termination of pregnancies.'
3. This statute provided: ‘Whoever, by means of any instrument, medicine, drug or other means whatever, procures or produces, or attempts to procure or produce an abortion or miscarriage on any woman, unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years; * * *’
ELKINGTON, Associate Justice.
SIMS, J., concurs.