BOWLAND v. PEOPLE (1976)

Plaintiffs have appealed from a judgment of the Superior Court which denied their petition for a peremptory writ of mandate to restrain the respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which they are charged with a violation of section 2141 of the Business and Professions Code.¹ They contend that section 2141 is unconstitutional because of overbreadth and vagueness and that the respondent court erred in overruling their demurrer because the facts stated in the complaint do not constitute a public offense.

The People maintain that the statute is neither vogue nor overbroad and argue further that the complaint is sufficient in every respect.

Section 2141 provides: ‘Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or proscribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor.’

The complaint charged plaintiffs with violation of section 2141 as follows: That on or about October 25, 1973, to March 6, 1974, each plaintiff ‘did willfully and unlawfully hold herself out as practicing a system or mode of treating the sick or afflicted to wit: such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137 and 2140 of the Business and Professions Code, and treat for a physical condition of a person, to wit: Terry Johnson, by such practices without having at the time of doing so a valid unrevoked certificate as provided in Chapter V, Division 2 of the Business and Professions Code.’

Plaintiffs demurred to the complaint on the ground that the allegations do not substantially conform to the provisions of Penal Code sections 950 and 952; that the allegations are uncertain in that they do not give fair notice of the offense of which plaintiffs are charged and are not sufficiently certain to allow a future plea in bar; that the facts stated in the complaint do not constitute a public offense; that section 2141 may not constitutionally be applied to plaintiffs; and that the facts alleged do not constitute a public offense in that section 2141 is unconstitutional ‘on the grounds of void for vagueness and/or overbreadth.’

We conclude that the statute is neither vague nor overbroad and that the facts stated in the complaint constitute a public offense.

‘In construing a statute our concern is to ascertain and to give effect to the legislative intent. [Citations.] In ascertaining the intent articulated in the statute, the court should first turn to the words of the statute to determine the will of the Legislature [citations] and give effect to the statute according to the usual, ordinary import of the language employed in framing it. [Citations.]’ (Noroian v. Department of Administration, 11 Cal.App.3d 651, 654–655. 89 Cal.Rptr. 889, 891; Kimball v. County of Santa Clara, 24 Cal.App.3d 780, 784, 101 Cal.Rptr. 353.)

Analyzing the subject statute pursuant to this principle we interpret it to proscribe two separate types of conduct. The first part of the statute makes it a misdemeanor for any person to practice or attempt to practice, or to advertise or hold himself out as practicing, any system or mode of treating the sick or afflicted without having at the time of so doing a valid unrevoked certificate authorizing such person to perform such act. The second part makes it a misdemeanor for any person to diagnose, treat, operate for, or prescribe for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition without having at the time of so doing a valid certificate authorizing such person to perform such act.

In considering plaintiffs' claim of vagueness we are guided by certain established principles of statutory construction and by the decisions which have considered the validity of section 2141 in the face of the claim of vagueness and uncertainty. The first principle is ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . and 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.’ (Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Katzev v. County of Los Angeles, 52 Cal.2d 360, 370, 341 P.2d 310; Mandel v. Municipal Court, 276 Cal.App.2d 649, 669, 81 Cal.Rptr. 173.)

Nonetheless we noted in People v. Medina, 27 Cal.App.3d 473, 479, 103 Cal.Rptr. 721, that all presumptions are in favor of the validity of a statute; mere doubt is not a sufficient basis for finding it constitutionally defective and its invalidity must be clear and unquestionable. (See also Dittus v. Cranston, 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671; Board of Supervisors v. Dolan, 45 Cal.App.2d 237, 241, 119 Cal.Rptr 347.) We also observed in Medina that, although a criminal statute which is so indefinite, vague and uncertain as to preclude ascertainment of the conduct which is prohibited is unconstitutional and void, a statute will not be found to be void for uncertainty if any reasonable and practical construction can be given to its propscription. (27 Cal.App.3d at p. 479, 103 Cal.Rptr. 721; see also People v. Madearos, 230 Cal.App.2d 642, 644, 41 Cal.Rptr. 269; Kelly v. Mahoney, 185 Cal.App.2d 799, 803, 8 Cal.Rptr. 521.)

It is also a rule of statutory construction that although certain words or phrases may themselves be vague, construction of the statute as a whole may supply them with meaning, certainty and clarity. (People v. Belous, 71 Cal.2d 954, 960, 80 Cal.Rptr. 354, 458 P.2d 194; People v. Untiedt, 42 Cal.App.3d 550, 553, 116 Cal.Rptr. 899.) Such construction is engaged in with a view to promoting rather than defeating the statute's general purpose and the policy behind it and with prime consideration given the objects it seeks to achieve and the evils it seeks to prevent. (People v. Centr-O-Mart, 34 Cal.2d 702, 704, 214 P.2d 378; Lowman v. Stafford, 226 Cal.App.2d 31, 38, 37 Cal.Rptr. 681.)

The contention that section 2141 is unconstitutional because it is vague has heretofore been rejected in People v. Bernhardt, 222, Cal.App.2d 567, 585, 35 Cal.Rptr. 401 and in Crees v. California State Board of Medical Examiners, 213 Cal.App.2d 195, 215, 28 Cal.Rptr. 621.² The constitutionality of section 2141 has also been attacked in the federal courts and has been held to be sufficiently specific and reasonable in its classifications. (Dayan v. People of the State of California, 9 Cir., 293 F.2d 46.) In Crees it is stated that ‘A reading of the section suggests that people of common intelligence would have no trouble in understanding what was proscribed.’ (213 Cal.App.2d at p. 215, 28 Cal.Rptr. at p. 633.)

Adverting to the contention that the language of section 2141 is overbroad, we apprehend the thrust of this contention to be that the phrase ‘or other mental or physical condition’ purports to embrace all conditions of living beings, whether those conditions relate in any manner to sickness or disease. It is, of course, a settled canon of constitutional law that statutes must be narrowly drawn and must not sweep too broadly. (Cox v. Louisiana, 379 U.S. 536, 551–552, 85 S.Ct. 453, 13 L.Ed.2d 471; Thornhill v. Alabama, 310 U.S. 88, 105–106, 60 S.Ct. 736, 84 L.Ed. 1093; People v. Orser, 31 Cal.App.3d 528, 537, 107 Cal.Rptr. 458; see In re Hoffman, 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.) Accordingly, an enactment that is overbroad in its terms or coverage is unconstitutional as amounting to a denial of due process because it fails to provide a proper definition of the crime intended to be established. (American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 219, 28 Cal.Rptr. 700, 379 P.2d 4; Katzev v. County of Los Angeles, supra, 52 Cal.2d 360, 367–368, 341 P.2d 310; Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 662, 81 Cal.Rptr. 173.) On the other hand, when a ‘statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society . . . the fact that [otherwise constitutionally protected conduct] is intermingled with such conduct does not bring with it constitutional protection.’ (Cox v. Louisiana, 379 U.S. 559, 564, 85 S.Ct. 453, 481, 13 L.Ed.2d 471; Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 662, 81 Cal.Rptr. 173.)

The claim that section 2141 is overly broad is directed to the second part of the statute. When construed in relation to the phrase ‘or other mental or physical condition’ the statute proscribes a person from diagnosing, treating, operating for, or prescribing for such a condition unless the person has the certificate referred to in the statute authorizing him to perform such acts. The verbs ‘diagnose,’ ‘treat,’ ‘operate for’ and ‘prescribe,’ in the connotation used in section 2141 have obvious reference to the healing arts. The word ‘diagnose’ clearly refers to the act of recognizing disease from its symptoms (see Bus. & Prof.Code, § 2013); ‘treat’ means ‘to care for medically or surgically’; ‘operate’ has reference to the performing of a procedure on a living person for the purpose of restoring health; and ‘prescribe’ means the giving of a medical prescription or the direction, designation or ordering of a remedy for a person who is sick or affected. (See Webster's Third New Internat. Dict.)

We observe that while the phrase ‘or other mental or physical condition’ standing by itself can encompass conditions not within the contemplation of the healing arts, this phrase, when coupled with the verbs which precede it, as it must, can only be interpreted and read as permitting the narrower construction which fully achieves the intended ends of the statute. The statute as so construed is not overbroad but falls within the legitimate governmental interest in defining and regulating the practice of the healing and medical arts so as to protect the people from the imposition of quacks and charlatans and to insure proper qualifications for the sick and infirm. (Bohannon v. Board of Med. Examiners, 24 Cal.App. 215, 219, 140 P. 1089; see People v. Barksdale, 8 Cal.3d 320, 335, 105 Cal.Rptr. 1, 503 P.2d 257.)

Plaintiffs' third contention is that the complaint is insufficient for failure to state facts which constitute a public offense. In pertinent part the complaint alleges that each plaintiff violated section 2141 in that she ‘did willfully and unlawfully practice and hold herself out as practicing a system or mode of treating the sick or afflicted, to wit: such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137 and 2140 of the Business and Professions Code, and treat for a physical condition of a person, to wit: Terry Johnson, by such practices without having at the time of so doing a valid, unrevoked certificate . . ..’

In People v. Cosper, 76 Cal.App. 597, 245 P. 466, the defendant was charged with violation of section 17 of the Medical Practice Act, a precursor of section 2141, proscribing the wilful practice of any system or mode of treating the sick and afflicted by one who does not hold a valid certificate therefor. The evidence disclosed that the defendant, the director of an institute which was organized for the purpose of teaching students to treat by prayer the sick and afflicted, arranged to treat a pregnant woman during the period of her confinement. In the presence of his students the defendant gave the woman a physical examination and gave her instructions as to character of the exercises which she should perform in order to aid the birth of her child. While the woman was in labor the students retired to the dining room of the woman's house and either engaged in silent prayer or in dancing or other forms of amusement. This ‘treatment’ continued for about 21 hours. The woman was then removed, at the insistance of her husband, to a maternity hospital where the child was born. This evidence was held sufficient to support the charge in the information. (At p. 600, 245 P. 466.)

In Bernhardt it was held that section 2141 prohibits the practice of obstretrics by chiropractors (222 Cal.App.2d at p. 585, 35 Cal.Rptr. 401) and in Crees it was held that a chiropractor, not authorized to practice medicine, is proscribed by section 2141 from engaging in the practice of obstretrics, severing the umbilical cord, or performing an episiotomy (213 Cal.App.2d at pp. 211–213, 28 Cal.Rptr. 621). Although the reviewing court recognized that childbirth is not a disease but a normal function of women, it observed that obstretrics is ‘a highly important branch of the science of medicine.’ (213 Cal.App.2d 195, 212, fn. 8, 28 Cal.Rptr. 621, 631.)³

We observe that the practice of midwifery has been considered by the Legislature as the exercise of a profession or occupation related to the art and science of medicine and surgery and subject to regulation and licensing. As early as 1917 the Legislature provided for the issuance by the Board of Medical Examiners of certificate to practice midwifery. (Stats.1917, ch. 81, p. 96.) It was provided in the statute that the certificate entitled the holder thereof ‘to attend cases of childbirth.’ (Stats.1917, supra.) The practice of midwifery was defined as ‘the furthering or undertaking by any person to assist a woman in normal childbirth, but it does not include at any childbirth the use of any instrument, except such instrument as is necessary in severing the umbilical cord, nor the assisting of childbirth by any artificial, forcible or mechanical means, nor the performance of any version, nor the removal of adherent placenta, nor the administering, prescribing, advising or employing in childbirth of any drug, other than a disinfectant or cathartic.’ (Stats.1917, at pp. 96–97.)

The provisions of chapter 81 of the Statutes of 1917, applicable to midwifery, found themselves, with intervening amendments, in Business and Professions Code section 2140 in 1937. (Added by Stats. 1937, ch. 414, p. 1377.) Section 2140 provided for the issuance of a certificate to practice midwifery authorizing the holder ‘to attend cases of normal childbirth’ and defined the practice of midwifery in the identical language of the original 1917 statute. Section 2140 remained in this form until its repeal in 1974, effective September 23, 1974 (Stats.1974, ch. 1044, § 4), when it was superseded by section 2350 (Stats.1974, ch. 1044, § 18) providing for the authority conferred by the issuance of a midwifery certificate. The provisions of section 2350 are identical to those contained in former section 2140.⁴

We observe that from 1937 to 1949 the authority for the issuance of a midwife's certificate was contained in section 2135. In 1949 the classification of midwifery was deleted from section 2135. (Stats.1949, ch. 898, p. 1670.) Accordingly, from October 1, 1949, the effective date of the 1949 amendment, until September 23, 1974, the effective date of section 2350, there was no provision or authority for the issuance of a certificate to practice midwifery and it was a misdemeanor to engage in the practice of midwifery. (§ 2141.) The amendment deleting the classification of midwifery from section 2135 did not, however, affect persons to whom certificates to practice midwifery had been issued prior to October 1, 1949. (See former §§ 2140, 2400–2408.) We note, here, that at the time of the instant charge, i. e., October 25, 1973, to March 6, 1974, the only persons who could practice midwifery were those to whom valid certificates had been issued prior to October 1, 1949.

It is significant to note that at times pertinent to this case the practice of midwifery was restricted to ‘cases of normal childbirth’ and constituted, subject to the limitations provided for in former section 2140, to ‘the furthering or undertaking by any person to assist a woman in normal childbirth.’ (Former § 2140; emphasis added.) Webster defines the word ‘childbirth’ as ‘the act of bringing forth a child or offspring.’ (Webster's Third New Internat. Dict.) It is apparent, therefore, that the practice of midwifery was limited to the act of childbirth and did not encompass prenatal care, treatment, or prescription.

Adverting to the instant complaint in the light of the foregoing analyses and discussion, we take cognizance of certain statutes and decisions dealing with accusatory pleadings. Penal Code section 950 states that ‘The accusatory pleading must contain . . . 2. A statement of the public offense or offenses charged therein’; and section 952 of the Penal Code provides, in pertinent part, as follows: ‘In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. . . .’ (See People v. Mancha, 39 Cal.App.3d 703, 721, 114 Cal.Rptr. 392, and Patterson v. Municipal Court, 17 Cal.App.3d 84, 87, 94 Cal.Rptr. 449 [accusatory pleading must give notice of the offense charged]; Ratner v. Municipal Court, 256 Cal.App.2d 925, 929, 64 Cal.Rptr. 500 [notice requirement satisfied if pleading charges offense in the language of the statute]; and People v. Randazzo, 48 Cal.2d 484, 489, 310 P.2d 413; People v. Atwood, 223 Cal.App.2d 316, 323, 35 Cal.Rptr. 831 [pleading must allege essential elements of statutory offense].) Accordingly, if the complaint does not substantially conform to the provisions of Penal Code sections 950 and 952, it is vulnerable to and a grounds for demurrer. (Pen.Code, § 1004.)

The charge in the instant complaint is that plaintiffs violated section 2141 in that from October 25, 1973, to March 6, 1974, each of them, although not licensed to do so, held themselves out as practicing a system or mode of treating the sick and afflicted in that plaintiffs would undertake to assist and treat one Terry Johnson at childbirth under the authorization of sections 2137 and 2140 and that they would treat said Terry Johnson for a physical condition. The complaint does not purport to allege that plaintiffs actually engaged in such practices.

The allegations of the complaint purport to charge plaintiffs with violating the first part of section 2141. It charges that plaintiffs held themselves out as practicing a system or mode of treating the sick or afflicted, without having a certificate to do so, in three respects: that they would undertake to assist Terry Johnson in childbirth as authorized in section 2137; that they would assist her in childbirth as authorized in section 2140; and that they would treat her for a physical condition.

It should be noted, here, that the specific charge deals with the treating of the ‘sick or afflicted.’ We apprehend the term ‘sick’ to mean a person who is not well or healthy, or who is affected with disease. (See Webster's Third New Internat. Dict.) The word ‘afflicted’ must be understood, in the context used, as ‘greviously affected or troubled, esp. by disease’ or to mean ‘mentally or physically impaired.’ (Webster's Third New Internat. Dict.)

With particular respect to childbirth, we note that it has been held and recognized that neither pregnancy nor childbirth is a sickness, disease or disability but, rather, a normal physiological condition of women. (See Crees v. California State Board of Medical Examiners, supra, 213 Cal.App.2d 195, 212, fn. 8, 28 Cal.Rptr. 621; Rasicot v. Royal Neighbors of America, 18 Idaho 85 [108 P. 1048, 1053]; Banti v. State, 163 Tex.Cr.R. 89 [289 S.W.2d 244, 247]; Cerra v. East Stroudsburg Area School District, 3 Pa.Cmwlth. 665 [285 A.2d 206, 217]; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 652, 94 S.Ct. 791, 39 L.Ed.2d 52 (Powell, J. concurring); Newmon v. Delta Air Lines, Inc., D.C., 374 F.Supp. 238, 245.) Accordingly, a pregnant woman is not sick or afflicted either prenatally or at the time of childbirth. Pregnancy, is, however, a physical condition.

We consider, first, the conduct authorized in section 2137 which provides as follows: ‘The physician's and surgeon's certificate authorizes the holder to use drugs or what are known as medical preparations in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions.’

The thrust of the instant charge, insofar as the conduct authorized in section 2137 is concerned, is not that plaintiffs held themselves out solely as assisting in normal childbirth but that in connection with such assistance they could and would do, if necessary, the acts and procedures delineated in section 2137. These specific acts and procedures may only be performed by a person holding a valid physician's and surgeon's certificate. Accordingly, as respects the charge specifically referring to section 2137, the instant complaint states a public offense.

Adverting to former section 2140, in force at the time of the occurrences alleged in the complaint, we note that this statute had particular reference to the practice of midwifery and the midwife's certificate. As already pointed out, this statute merely authorized a midwife to assist at normal childbirth and that it did not authorize the use of any instrument, excepting such instrument as necessary in severing the umbilical cord, nor did it authorize the assisting of childbirth by any artificial, forcible or mechanical means, and that it did not authorize the use of any drug other than a disinfectant or cathartic.

In view of the specific provisions of section 2141 and the decisions holding that childbirth is not a sickness, disease or disability, we conclude that the instant charge alluding to the conduct authorized in former section 2140 does not state a public offense. A person who holds himself or herself as authorized to practice midwifery does not purport to practice a system or mode of treating the ‘sick or afflicted’ since a pregnant woman undergoing normal childbirth is not ‘sick or afflicted.’ We conclude, therefore, that the proper statue under which a person who holds himself or herself out as practicing midwifery, without having a certificate authorizing such person to do so, is section 2426 which provides, in pertinent part, as follows: ‘Unless it is otherwise expressly provided, any person who violates any provision of this chapter, is guilty of a misdeameanor . . ..’

Cosper and Bernhardt do not require a different conclusion. These cases did not deal with the practice of midwifery. The conduct and acts performed in Cosper exceeded the conduct and acts authorized in the practice of midwifery. Bernhardt was not concerned with assistance at normal childbirth but with that branch of medicine known as obstretrics.

The third specification of alleged conduct in violation of section 2141 is that plaintiffs held themselves out as practicing a system or mode of treating the sick or afflicted for a physical condition. Such an allegation states a public offense in the language of section 2141 in words sufficient to give each accused notice of the offense of which she is charged. As we have already pointed out, the word ‘treat,’ in the context used, means, and would be understood by a person of common intelligence to mean, the medical or surgical caring of Terry Johnson's physical condition. The term ‘physical condition’ has obvious reference to the state of a person's body and, in the context used, to the needs and well-being of the person to be treated.

Our analysis of the complaint is that it charges but a single offense, i. e., plaintiffs' holding themselves out as practicing a system or mode of treating the sick or afflicted, and that the manner in which plaintiffs so held themselves out consists of the circumstances particularly set forth. As already indicated the complaint states a public offense. Accordingly, the demurrer to the complaint was properly overruled. The court should, however, have stricken the circumstance alluding to former section 2140 since that circumstance, standing alone, would not constitute a public offense in violation of section 2141. With that portion stricken the complaint still remains a good complaint under section 2141 since it alleges the essential elements of an offense proscribed by section 2141 and dose so in words sufficient to give the accuse notice of the offense with which they are charged. (see People v. Perez, 87 Cal. 122, 123, 25 P. 262.)

The judgment is affirmed, and the trial court is directed to strike the word and figures ‘and 2140’ from the phrase ‘such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137 and 2140 of the Business and Professions Code’ appearing and contained in count I of the complaint.

FOOTNOTES

1.  Unless otherwise indicated all statutory references are to the Business and Professions Code.

2.  A petition for a hearing by the Supreme Court was denied in each of these cases.

3.  Webster defines ‘obstretrics' as ‘a branch of medical science that deals with birth and with its antecedents and sequels.’ (Webster's Third Now Internat. Dict.; see State v. Houck, 32 Wash.2d 681, 691 [203 P.2d 693, 699]; and see Minogue v. Rutland Hospital, 119 Vt. 336, 341 [125 A.2d 796, 800]; Stoike v. Weseman, 167 Minn. 266, 267 [208 N.W. 993].

4.  We also observe that, effective January 1, 1975, the classification ‘Nurse-Midwives' was added to the Business and Professions Code (§§ 2746–2746.8; Stats.1974, ch. 1407, § 1). The certificate to practice nurse-midwifery ‘authorizes the holder, under the supervision of a licensed physician and surgeon, to attend cases of normal childbirth and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn.’ (§ 2746.5.) ‘. . . The practice of nurse-midwifery does not include the assisting of childbirth by any artificial, forcible, or mechanical means, nor the performance of any version.’ (§ 2746.5)

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.