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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Rex PETTEGREW, Defendant and Appellant.

Cr. 18376.

Decided: July 12, 1971

Elinor Chandler, Los Angeles, for appellant. Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab, Deputy Atty. Gen., for respondent.

Appellant, a doctor of medicine, licensed to practice in California, was convicted of having performed an abortion. He appeals from the judgment.1

The facts which mandated appellant's conviction are uncontroverted. The entire appeal represents a challenge of the constitutionality of the Therapeutic Abortion Act (Health and Safety Code, § 25951 et seq.) and of the general right of the State to legislate in this area.

United States v. Vuitch (1971), 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601, answers most of appellant's contentions. In Vuitch, the United States Supreme Court rejected the contention of a licensed physician that the District of Columbia Code under which he was indicted for ‘producing and attempting to produce abortions' was unconstitutionally vague.2

There is no attempt at bench to bring appellant's act within the provisions of the Therapeutic Abortion Act which was in effect at the time he committed the offense. On the contrary, he challenges the provisions of the Therapeutic Abortion Act in claiming that its provisions are unconstitutionally vague.

The Supreme Court in Vuitch was construing a statute which was in its terms less precise (see ff. 2, supra) than our California formulation which permits abortions when, in the judgment of the committee of the medical staff of the hospital, ‘There is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother;’ (Health and Safety Code, section 25951(c)(1).) If our highest court has opined that the word ‘health’ standing alone was precise enough to withstand constitutional challenge (Vuitch, 402 U.S. 71, 91 S.Ct. 1299, 28 L.Ed.2d 609–610) we are not disposed to strike down a statute for vagueness where, as in the law before us, ‘health’ is further qualified and defined by numerous provisions of the Therapeutic Abortion Act itself.

Appellant also challenges the right of the State to prescribe when and under what circumstances a woman may have an abortion. We are cited to Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and to People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, for the proposition that the right not to bear children is a fundamental right which is not subject to State intrusion.

In Belous, the California Supreme Court specifically declined to address itself to the question whether the Therapeutic Abortion Act ‘* * * infringes on the woman's right to choose whether to bear children * * *’ (71 Cal.2d at 973 fn. 15, 80 Cal.Rptr. at 366, 458 P.2d at 206.) In Vuitch, the United States Supreme Court refused to reach arguments based on Griswold and limited its holding to finding the District of Columbia statute certain in its terms. (402 U.S. 72, 91 S.Ct. 1299, 28 L.Ed.2d 610.) Faced with this judicial reticence, we hold that the State has the right to legislate in this area, as long as that legislation, in a paraphrase of Justice Douglas, does not trench on constitutional guarantees. (United States v. Vuitch, supra, 402 U.S. 74, 78, 91 S.Ct. 1294, 1302, 28 L.Ed.2d 601, 613, Douglas, J., dissenting.)

Our holding flows from a study of the Vuitch decision itself. That the Congress has the right to enact the District of Columbia statute in question is implicit in the holding that the statute itself is certain in its terms. Were it otherwise, the Supreme Court would never have been able to reach the void-for-vagueness issue. Moreover, not even the dissent of Justice Douglas in Vuitch disturbs our holding. On the contrary, Justice Douglas writes that the government is not powerless to ‘legislate on abortions' and then cites with approval New York legislation governing abortions which, in its terms, is not as circumscribed as our California law. (402 U.S. 80, 91 S.Ct. 1303, 28 L.Ed.2d 613, 614, fn. 4.)3

Our State legislature's intent in enacting the Therapeutic Abortion Act has been construed to be the protection of the pregnant woman's mental and physical health. (People v. Belous, supra, 71 Cal.2d 954, 971, 80 Cal.Rptr. 354, 458 P.2d 194.) The protection of health has been long held to be an appropriate basis for legislative action (Jacobson v. Massachusetts (1905) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643), as long as it meets other constitutional tests. (Skinner v. Oklahoma (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.)

Accordingly, our State legislature acted within its constitutional powers when it enacted the Therapeutic Abortion Act, and the associated provisions of the Penal Code are likewise a constitutional exercise of legislative power.

Appellant's contention that women are denied the equal protection of the laws because they cannot subject themselves to abortions, while men are not similarly limited, is frivolous in the extreme. Apart from a fairly obvious biological answer to this ‘contention’, it is not that women cannot have a certain operation, while men can have any operation, but it is the State's legitimate interest in regulating all and any medical practices, including abortions, which is fundamental to abortion legislation. That the State has such an interest has been established, albeit sub silentio, in Vuitch as well as Belous.

Finally, we note that both men and women are entitled to undergo surgical procedures which render them sterile. Thus, it is not that the State ‘interferes' in the act of procreation but that there is a valid public purpose in regulating abortions in the interest of the pregnant mother and the State.

Appellant also contends that the provisions of the Therapeutic Abortion Act present an unconstitutional delegation of legislative power. However, as the Belous court held, the assessments implicit in deciding upon an abortion do not ‘involve considerations beyond medical competence’ and are such as are best made by medical doctors. (71 Cal.2d at 971, 80 Cal.Rptr. 354, 458 P.2d 194.) We perceive nothing impermissible in deferring to expert judgment when the criteria for the exercise of that judgment have been broadly determined by the legislature. (Fillmore Union High School Dist. v. Cobb, 5 Cal.2d 26, 33–34, 53 P.2d 349; generally see 2 Cal.Jur.2d, Administrative Law, § 58.)

The judgment is affirmed.


1.  Appellant's sentence of a one-year term in County Jail was suspended on the payment of a $500 fine plus the penalty assessment and a stay was granted pending this appeal.

2.  The challenged portion of that Code provided in revelant part:“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; * * *” (402 U.S. at 67, 91 S.Ct. at 1297, 28 L.Ed.2d at 607.)

3.  Justice Douglas authorized Griswold. His dissent in Vuitch takes cognisance of Griswold but fails to extend the penumbra of that decision to Vuitch.

ROTH, Presiding Justice.

HERNDON and FLEMING, JJ., concur.