PETERS, J.
Dr. Leon Phillip Belous was convicted in January 1967, after a jury trial, of abortion, in violation of section 274 of the Penal Code, and conspiracy to commit an abortion, in violation of section 182 of the Penal Code, both felonies. The court suspended proceedings, imposed a fine of $5,000, and placed Dr. Belous on probation for two years. He appeals from the order granting probation.
Dr. Belous is a physician and surgeon, licensed since 1931 to practice medicine in the State of California, and specializing in obstetrics and gynecology. He has been on the attending staff of the gynecology department of Cedars of Lebanon Hospital in Los Angeles since 1931, is a fellow of the Los Angeles Gynecology and Obstetrical Society, the American College of Obstetrics and Gynecology, and the Abdominal Surgical Society, and the Geriatric Society, and a member of the American Board of Obstetrics and Gynecology. He is on the Board of Directors of the California Committee on Therapeutic Abortion, an organization which seeks to liberalize abortion laws. He is considered by his associates to be an eminent physician in his field.
The prosecution's witnesses, a young woman and her husband, Cheryl and Clifton, testified to the following:
In 1966, Cheryl, then unmarried, believed she was pregnant. A family physician had given her pills which would induce menstruation if she were not pregnant, but the pills did not work. She and Clifton had sometime earlier seen Dr. Belous on television, advocating a change in the California abortion laws. They had never heard of Dr. Belous before. Clifton obtained the doctor's phone number from the television station and phoned Dr. Belous; he explained the problem and that they both were "pretty disturbed," and at their "wits' end" and asked for Dr. Belous' help. Dr. Belous told him there was nothing he could do, but Clifton "continued pleading," and threatened that Cheryl would go to Tijuana for an abortion. Finally the doctor agreed to see them at his office.
Dr. Belous examined Cheryl at his Beverly Hills office and confirmed that she was possibly pregnant. Cheryl was otherwise in good health. The visit lasted about 45 minutes and was very emotional. Both Clifton and Cheryl pleaded for help, cried, insisted they were going to have an abortion "one way or another." The doctor lectured them on the dangers of criminal abortions, and Tijuana abortions in particular, and suggested that they get married. He insisted he did not perform abortions. He refused to recommend anyone in Tijuana. Finally, in response to their pleadings, Dr. Belous gave them a piece of paper with a Chula Vista phone number. He told them an abortion would cost about $500. He gave Cheryl a prescription for some antibiotics and instructed her to return for an examination.
Dr. Belous testified that he was very familiar with the abortion business in Tijuana. He had visited the clinics there to learn about conditions and knew that women who went to Tijuana were taking their lives in their hands. He met Karl Lairtus while in Tijuana and knew from personal observation that Lairtus, licensed to practice in Mexico but not in California, was performing skilled and safe abortions in Mexico. Lairtus wanted to obtain a California license, and sought out Belous' help on a number of occasions. When Lairtus moved from Mexico to Chula Vista, he gave Dr. Belous his address and phone number. When Lairtus moved to Los Angeles, he gave the doctor a Hollywood address, and made it known to the doctor that he was performing abortions. It was Lairtus' number that Belous gave to Cheryl and Clifton. Although he had given out Lairtus' number before, in similar situations, where distraught pregnant women insisted they would do anything, Dr. Belous had no idea how many women actually went to Lairtus.
Cheryl and Clifton made arrangements with Lairtus, and went to the address which Lairtus gave them on the phone. After the abortion was performed, while Cheryl was resting, the police, having been advised by another woman that Lairtus was performing abortions at that address, came to his apartment, followed another couple into the apartment and arrested Lairtus. They found two notebooks, containing women's names, ages, dates of last menstruation, and physician's names, including Dr. Belous' name, which the police interpreted as the referring doctor with whom Lairtus was to split his fees. On the basis of this information, Dr. Belous was arrested at his office. Lairtus pleaded guilty. At Dr. Belous' trial, he testified that, although not solicited, he sent Dr. Belous about $100 as a professional courtesy in about half the cases that he had performed abortions on Dr. Belous' patients. Dr. Belous denied receiving any money from Lairtus.
The substance of Dr. Belous' defense was that he gave Lairtus' phone number to Cheryl and Clifton only because he believed that they would, in fact, do anything to terminate the pregnancy, which might involve butchery in Tijuana or self-mutilation; that in face of their pleading and tears, he gave out the phone number of someone whom he knew to be a competent doctor, although unlicensed in this state. The doctor believed that if the young couple carried out their threats, Cheryls' very life was in danger.
Section 274 of the Penal Code, when the conduct herein involved occurred, read: "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."
The statute was substantially unchanged since it was originally enacted in 1850. In 1967, the statute was amended and sections 25950 through 25954 ("Therapeutic Abortion Act") added to the Health and Safety Code. The act extends the lawful grounds for obtaining an abortion. Section 274 is directed towards the abortionist. Under section 275 of the Penal Code (also amended by the Therapeutic Abortion Act), a woman who solicits or submits to an abortion is punishable by up to five years' imprisonment; similarly, under section 276, any person who solicits a woman to submit to an abortion is punishable by up to five years' imprisonment.
Stats. 1850, ch. 99, § 45, at p. 233: "[E]very person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the State Prison for a term not less than two years, nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who, in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life."
Penal Code, section 274, as amended reads: "Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, except as provided in the Therapeutic Abortion Act . . . of the Health and Safety Code, is punishable by imprisonment in the state prison. . . ." (Stats. 1967, ch. 327, § 3, at p. 1523; italics added.)
The Therapeutic Abortion Act (Health Saf. Code, §§ 25950-25954) authorizes abortions "only" if the abortion takes place in an accredited hospital (§ 25951, subd. (a)); the abortion is approved by a hospital staff committee consisting of at least three licensed physicians and surgeons (§ 25951, subd. (b)); and there is "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother" (§ 25951, subd. (c)(1)); the pregnancy resulted from rape or incest (§ 25951, subd. (c)(2)); or the woman is under 15 years of age (§ 25952, subd. (c)).
[1a] We have concluded that the term "necessary to preserve" in section 274 of the Penal Code is not susceptible of a construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.
[2] "The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. [3] `No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids . . . "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."' ( Lanzetta v. New Jersey, 306 U.S. 451, 453 [83 L.Ed. 888, 890 59 S.Ct. 618]; see also Connally v. General Constr. Co., 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) Such also is the law of the State of California. ( People v. McCaughan, 49 Cal.2d 409, 414 [ 317 P.2d 974].)
[4] "The required meaning, certainty and lack of ambiguity may appear on the face of the questioned statute or from any demonstrably established technical or common law meaning of the language in question. ( People v. McCaughan, supra, 49 Cal.2d 409, 414; Lorenson v. Superior Court, 35 Cal.2d 49, 60 [ 216 P.2d 859].)" ( In re Newbern, 53 Cal.2d 786, 792 [ 3 Cal.Rptr. 364, 350 P.2d 116].) [5] The requirement of certainty in legislation is greater where the criminal statute is a limitation on constitutional rights. (See Smith v. California (1959) 361 U.S. 147, 151 [4 L.Ed.2d 205, 210, 80 S.Ct. 215].) On the other hand, mathematical certainty is not required; "some matter of degree" is involved in most penal statutes. ( Nash v. United States (1913) 229 U.S. 373, 377 [57 L.Ed. 1232, 1235, 33 S.Ct. 471].)
[6] Dictionary definitions and judicial interpretations fail to provide a clear meaning for the words, "necessary" or "preserve." There is, of course, no standard definition of "necessary to preserve," and taking the words separately, no clear meaning emerges. "Necessary" is defined as: "1. Essential to a desirable or projected end or condition; not to be dispensed with without loss, damage, inefficiency, or the like; . . ." (Webster's New International Dictionary (2d ed.), unabridged.) The courts have recognized that "`necessary' has not a fixed meaning, but is flexible and relative." ( Westphal v. Westphal, 122 Cal.App. 379, 382 [ 10 P.2d 119]; see also, City of Dayton v. Borchers (1967) 13 Ohio Misc. 273 [ 232 N.E.2d 437, 441]; ["A necessary thing may supply a wide range of wants, from mere convenience to logical completeness."].)
The definition of "preserve" is even less enlightening. It is defined as: "1. To keep or save from injury or destruction; to guard or defend from evil; to protect; save. 2. To keep in existence or intact; . . . To save from decomposition, . . . 3. To maintain; to keep up; . . . (Webster's New International Dictionary, supra.) The meanings for "preserve" range from the concept of maintaining the status quo — that is, the woman's condition of life at the time of pregnancy — to maintaining the biological or medical definition of "life" — that is, as opposed to the biological or medical definition of "death."
Since abortion before quickening was not a crime at common law (Perkins, Criminal Law (1967) 101; Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (1968) 14 N.Y.L.F. 411, 419-422; Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L.C. P.S. 84, 85) we cannot rely on common law meanings or common law referents (see Lorenson v. Superior Court, supra, 35 Cal.2d 49, 60; People v. Agnello, 259 Cal.App.2d 785, 790-791 [ 66 Cal.Rptr. 571]).
Compare United States v. Harriss (1954) 347 U.S. 612, 634 [98 L.Ed. 989, 1005, 74 S.Ct. 808] (dissenting opinion): "Whoever kidnaps, steals, kills, or commits similar acts of violence upon another is bound to know that he is inviting retribution by society, and many of the statutes which define these long-established crimes are traditionally and perhaps necessarily vague."
Various possible meanings of "necessary to preserve . . . life" have been suggested. However, none of the proposed definitions will sustain the statute.
[7a] Respondent asserts: "If medical science feels the abortion should be performed as it is necessary to preserve her life, then it may be performed; that is, unless it is performed the patient will die."
Our courts, however, have rejected an interpretation of "necessary to preserve" which requires certainty or immediacy of death. ( People v. Abarbanel, 239 Cal.App.2d 31, 32, 35 [ 48 Cal.Rptr. 336]; People v. Ballard, 218 Cal.App.2d 295, 298 [ 32 Cal.Rptr. 233]; People v. Ballard, 167 Cal.App.2d 803, 807 [ 335 P.2d 204].) Justice Fourt, in People v. Ballard, supra, 167 Cal.App.2d 803, 814, stated: "Surely, the abortion statute (Pen. Code, § 274) does not mean by the words `unless the same is necessary to preserve her life' that the peril to life be imminent. It ought to be enough that the dangerous condition `be potentially present, even though its full development might be delayed to a greater or less extent. Nor was it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief.' [Citations.]" The above language was quoted in People v. Abarbanel, supra, 239 Cal.App.2d 31, 34.
In People v. Ballard, supra, 167 Cal.App.2d 803, 813-814, the evidence established that the woman was "extremely nervous . . . upset, had headaches, was unable to sleep, and thought that she was pregnant. She was agitated, disturbed and had many problems." (Italics omitted.) In People v. Ballard, supra, 218 Cal.App.2d 295, 307, it was established that at the time each of the women went to the defendant doctor she was in a "bad state of health" because of self-imposed abortive practices. And in People v. Abarbanel, supra, 239 Cal.App.2d 31, the obstetrician performed the abortion after receiving letters from two psychiatrists to the effect that abortion was indicated as necessary to save the woman's life from the "possibility" of suicide. In each of the cases the conviction was reversed.
If the fact of ill health or the mere "possibility" of suicide is sufficient to meet the test of "necessary to preserve her life," it is clear that a showing of immediacy or certainty of death is not essential for a lawful abortion. Two other jurisdictions have also rejected an interpretation of "necessary to preserve" which would require certainty or immediacy of death. ( State v. Dunklebarger (1928) 206 Iowa 971 [ 221 N.W. 592, 596]; State v. Hatch (1917) 138 Minn. 317 [164 N.W. 1017].)
After the decision in Ballard, the Legislature did not amend the statute to repudiate the rule suggested by that case and to establish a definition requiring certainty of death.
The definitions suggested by the two Ballard cases and by Abarbanel will be discussed later in this opinion.
It would be anomalous to uphold a criminal statute against a charge of vagueness by adopting a construction of the statute rejected by the courts of this state as not reflecting leglative intent unless there was a clear showing of a strong public policy or legislative intent requiring adoption of the rejected construction. No such showing has been made with regard to the construction urged by respondent.
Moreover, a definition requiring certainty of death would work an invalid abridgment of the woman's constitutional rights. The rights involved in the instant case are the woman's rights to life and to choose whether to bear children. The woman's right to life is involved because childbirth involves risks of death.
Dr. Belous' standing to raise this right is unchallenged. (Cf. Griswold v. Connecticut (1965) 381 U.S. 479, 481 [14 L.Ed.2d 510, 512, 85 S.Ct. 1678]; Barrows v. Jackson (1953) 346 U.S. 249, 257 [97 L.Ed. 1586, 1595, 73 S.Ct. 1031]; Parrish v. Civil Service Com., 66 Cal.2d 260, 264 [ 57 Cal.Rptr. 623, 425 P.2d 223].)
E.g., The maternal death rate in 1966 was 0.5 per 100,000 population and 29.1 per 100,000 births. (Statistical Abstract of the United States (1968) table 73, at p. 58, table 68, at p. 55.) In California in 1966 the maternal death rate was 2.1 per 10,000 live births (California Statistical Abstract (1968) table E-3, at p. 67.) As to a particular pregnant woman the risk of death may be greater or lesser.
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. (See, e.g., Griswold v. Connecticut, supra, 381 U.S. 479, 485, 486, 500 [14 L.Ed.2d 510, 515, 516, 524, 85 S.Ct. 1678]; Loving v. Virginia (1967) 388 U.S. 1, 12 [18 L.Ed.2d 1010, 1018, 87 S.Ct. 1817] [statute prohibiting interracial marriages, violative of due process clause]; Skinner v. Oklahoma (1942) 316 U.S. 535, 536, 541 [86 L.Ed. 1655, 1657, 1660, 62 S.Ct. 1110] [sterilization laws; marriage and procreation involve a "basic liberty"]; Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535 [69 L.Ed. 1070, 1077-1078, 45 S.Ct. 571, 39 A.L.R. 468] [prohibition against nonpublic schools; same]; Meyer v. Nebraska (1923) 262 U.S. 390, 399-400 [67 L.Ed. 1042, 1045-1046, 43 S.Ct. 625, 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 [13 L.Ed.2d 675, 680, 85 S.Ct. 775] [fundamental but nonenumerated right to vote]; Aptheker v. Secretary of State (1964) 378 U.S. 500, 505-506 [12 L.Ed.2d 992, 996-997, 84 S.Ct. 1659], and Kent v. Dulles (1958) 357 U.S. 116, 125 [2 L.Ed.2d 1204, 1209, 78 S.Ct. 1113] [right to travel]; Bolling v. Sharpe (1954) 347 U.S. 497, 500 [98 L.Ed. 884, 887, 74 S.Ct. 693] [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] .) 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 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 [22 L.Ed.2d 600, 615, 89 S.Ct. 1322]; Sherbert v. Verner (1963) 374 U.S. 398, 403 [10 L.Ed.2d 965, 969, 83 S.Ct. 1790]), whether the regulation is "necessary . . . to the accomplishment of a permissible state policy" ( McLaughlin v. Florida (1964) 379 U.S. 184, 196 [13 L.Ed.2d 222, 230, 85 S.Ct. 283]; see also, N.A.A.C.P. v. Button, 371 U.S. 415, 438 [9 L.Ed.2d 405, 421, 83 S.Ct. 328]; Bates v. Little Rock (1960) 361 U.S. 516, 527 [4 L.Ed.2d 480, 488, 80 S.Ct. 412]; 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 [5 L.Ed.2d 231, 238, 81 S.Ct. 247]; see also, Cantwell v. Connecticut (1940) 310 U.S. 296, 308 [84 L.Ed. 1213, 1220, 60 S.Ct. 900, 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]).
[8] It is possible that the definition suggested by respondent, requiring that death be certain, was that intended by the Legislature when the first abortion law was adopted in 1850 and that, in the light of the then existing medical and surgical science, the great and direct interference with a woman's constitutional rights was warranted by considerations of the woman's health. 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. (Haagensen Lloyd, A Hundred Years of Medicine (1943) p. 19.) In 1867 Joseph Lister first published his findings on antiseptic surgery ( id., at pp. 241-242), but even in 1883 the techniques he developed were condemned ( id., at p. 245), and as late as 1895 were not well understood or properly applied by even leaders of the medical profession. ( Id., at p. 246; see also, H. Robb (1895) Aseptic Surgical Technique.)
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. (Douglas, Toxic Effects of the Welch Bacillus in Postabortal Infections (1956) 56 N.Y.State J.Med. 3673.) It is now safer for a woman to have a hospital therapeutic abortion during the first trimester than to bear a child.
C. Tietze H. Lehfeldt, Legal Abortion in Eastern Europe (April 1961) 175 J.A.M.A. 1149, 1152; see also V. Kolblova, Legal Abortion in Czechoslovakia (April 1966) 196 J.A.M.A. 371; K.H. Mehland, Combatting Illegal Abortion in the Socialist Countries of Europe (1966) 13 World Med.J. 84. There are, of course, no comparable data in the United States. However, in California from November 1967 through September 1968, 3,775 therapeutic abortions were reported without a maternal death. (See Annual Report on the Implementation of the Therapeutic Abortion Act, Department of Public Health, Bureau of Maternal and Child Health (January 1969), table 1.)
The only data contrary to the conclusions above is provided by the amicus for respondent, relying on Swedish data showing that maternal mortality from abortion is slightly higher than maternal mortality from giving birth. The Swedish figures are, however, explainable by the fact that abortions in Sweden are often performed during late pregnancy. (See Tietze Lehfeldt, supra, 175 J.A.M.A. 1149, 1152 (e.g., in 1949, 35 percent of Swedish abortions were performed after the first trimester); Hoffmeyer, Medical Aspects of the Danish Legislation on Abortions (1965) 17 W.Res.L.Rev. 529, 544-545.)
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." (Fox, Abortion Deaths in California (1967) 98 Am.J.Obst. Gynec. 645, 650.) In California, it is estimated that 35,000 to 100,000 such abortions occur each year. (Fox, supra, at p. 645.)
The phrases "criminal abortion" and "illegal abortion" are used by the medical profession — and by legal commentators — to encompass all abortions obtained other than from a physician in an accepted surgical environment. Any use of the phrase "criminal abortion" or "illegal abortion" in this opinion merely adopts the common phraseology; no legal conclusion is intended.
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. (Kistner, Medical Indications for Contraception: Changing Viewpoints (editorial) (1965) 25 Obst. Gynec. 285, 286.) 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." (Kleegman Kaufman, Infertility in Women (1966) p. 301; see also Curtis Huffman, Gynecology (6th ed. 1950) pp. 565, 566.)
There is considerable literature describing the experience of various hospitals with infected abortion. Hospital experience, however, can be assumed to be only the tip of the iceberg. Many badly infected women will be treated at home or in a doctor's office. (Reid, Assessment and Management of the Seriously Ill Patient Following Abortion (March 1967) 199 J.A.M.A. p. 805.) See, for hospital data, Goodno, Cushner, Molumphey, Management of Infected abortion (1963) 85 Am.J.Obst. Gynec. 16 [Baltimore City Hospitals]; Knapp, Platt and Douglas, Septic Abortion (1960) 15 Obst. Gynec. 344 [The New York Hospital]; Moritz Thompson, Septic Abortion (1966) 95 Am.J.Obst. Gynec. 46 [Miami Valley Hospital, Dayton, Ohio]; Stevenson Yang, Septic Abortion With Shock (1962) 83 Am.J.Obst. Gynec. 1229 [Detroit Receiving Hospital]; Studdiford Douglas, Placental Bacteremia: A Significant Finding in Septic Abortion Accompanied by Vascular Collapse (1956) 71 Am.J.Obst. Gynec. 842 [Bellevue Hospital, New York].)
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."
One of the amici in support of respondent agrees: "There is a substantial risk that abortion performed by persons unauthorized to practice surgery, carried out in unregulated places, will bring injury or even death to the mother."
Authorities recognizing and discussing the tragic health problem created by illegal abortions are legion. (See, e.g., Bates, The Abortion Mill: An Institutional Study (1954) 45 J.Crim.L.C. P.S. 157; Eastman, Expectant Motherhood (3d ed. 1957) 106 et seq.; Gold, Erhardt, Jacobziner Nelson, Therapeutic Abortions in New York City: A 20-Year Review (1965) 55 Am.J.Pub.Health 964, 970-971; Guttmacher (ed. 1967) The Case for Legalized Abortion Now; Lader (1966) Abortion; Leavy Kummer, Criminal Abortion: Human Hardship and Unyielding Laws (1962) 35 So.Cal.L.Rev. 123; Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes (1968) 46 N.C.L.Rev. 730; Niswander, Medical Abortion Practices in the United States (1965) 17 W.Res.L.Rev. 403.)
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. (Compare, e.g., Gray v. Sanders (1963) 372 U.S. 368, 381 [9 L.Ed.2d 821, 830, 83 S.Ct. 801], with South v. Peters (1950) 339 U.S. 276, 277 [94 L.Ed. 834, 836, 70 S.Ct. 641]; Baker v. Carr (1962) 369 U.S. 186, 237 [7 L.Ed.2d 663, 697, 82 S.Ct. 691], with Colgrove v. Green (1946) 328 U.S. 549, 556 [90 L.Ed. 1432, 1435, 66 S.Ct. 1198]; Brown v. Board of Education (1954) 347 U.S. 483, 495 [98 L.Ed. 873, 881, 74 S.Ct. 686, 38 A.L.R.2d 1180], with Plessy v. Ferguson (1896) 163 U.S. 537, 550-551 [41 L.Ed. 256, 260-261, 16 S.Ct. 1138].)
Constitutional concepts are not static. Our United States Supreme Court said, regarding the equal protection clause of the Fourteenth Amendment: "We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment `does not enact Mr. Herbert Spencer's Social Statics.' [Citation.] Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. . . ." ( Harper v. Virginia Board of Elections (1966) 383 U.S. 663, 669 [16 L.Ed.2d 169, 173, 86 S.Ct. 1079]; see also, Perez v. Sharp, supra, 32 Cal.2d 711, 727; Galyon v. Municipal Court, 229 Cal.App.2d 667, 671-672 [ 40 Cal.Rptr. 446], and cases cited therein ["[A] statute valid when enacted may become invalid by change in the conditions to which it is applied."]. See also, Means, supra, 14 N.Y.L.F. 411, 514-515.)
[7b] In the light of modern medical surgical practice, the great and direct infringement of constitutional rights which would result from a definition requiring certainty of death may not be justified on the basis of considerations of the woman's health where, as here, abortion is sought during the first trimester.
It is next urged that the state has a compelling interest in the protection of the embryo and fetus and that such interest warrants the limitation on the woman's constitutional rights. Reliance is placed upon several statutes and court rules which assertedly show that the embryo or fetus is equivalent to a born child. However, all of the statutes and rules relied upon require a live birth or reflect the interest of the parents.
It has been pointed out that "embryo" is more accurately descriptive than "fetus" in the instant case. Webster's New International Dictionary, supra, states: ". . . In mammals . . . embryo is applied only to early stages passed within the mother's body; later (in human embryology, usually after the third month of development) the young is called a fetus. . . ." (Italics in original.)
Statutes classifying the unborn child as the same as the born child require that the child be born alive for the provisions to apply. (E.g., Civ. Code, § 29 ["A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; . . ."]; Prob. Code, § 250 ["A posthumous child is considered as living at the death of the parent."]; Prob. Code, § 255 [An illegitimate child is the heir of his mother, whether born or conceived."].)
Similarly, cases holding that a child can recover for injuries caused before his birth require that the child be born alive. The interest protected is that of the child; and the right attaches, not to the embryo or fetus, but to the living child. ( Scott v. McPheeters, 33 Cal.App.2d 629, 637 [ 92 P.2d 678, 93 P.2d 562] [child injured at birth can bring action for injuries]; see also, Carroll v. Skloff (1964) 415 Pa. 47 [ 202 A.2d 9, 11]; Tomlin v. Laws (1922) 301 Ill. 616 [134 N.E. 24, 25]; Prosser, Law of Torts (3d ed. 1964) at p. 356 ["The child, provided that he is born alive, is permitted to maintain an action. . . ."].)
Where the embryo or fetus is allowed to asserts rights before birth it is the prospective mother or parents who are bringing the action; thus it is their interest that the law protects. ( Kyne v. Kyne, 38 Cal.App.2d 122, 127-128 [ 100 P.2d 806] [action on behalf of unborn child for support and to establish paternity]; People v. Sianes, 134 Cal.App. 355, 357-358 [ 25 P.2d 487] [Criminal action for nonsupport against father of unborn child]; People v. Yates, 114 Cal.App. Supp. 782, 786 [298 P. 961] [same].) Similarly, in those jurisdictions which recognize a cause of action for the loss of an unborn child, it is the parents' "distressing wrong in the loss of a child" that the law has recognized. (Prosser, supra, § 56, at p. 357; Torigian v. Watertown News Co. (1967) 352 Mass. 446, 448 [ 225 N.E.2d 926].)
In a case involving a pregnant woman who refused a blood transfusion, in ordering the transfusion the court made clear that it was concerned with the woman, rather than the fetus: ". . . Mrs. Jones wanted to live." ( Application of President Directors of Georgetown College, Inc. (D.C. Cir. 1964) 331 F.2d 1000, 1009 [118 App.D.C. 80, 9 A.L.R.3d 1367], cert. denied, 377 U.S. 978 [12 L.Ed.2d 746, 84 S.Ct. 1887]; but see, Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson (1964) 42 N.J. 421 [ 201 A.2d 537, 538], cert. denied, 377 U.S. 985 [12 L.Ed.2d 1032, 84 S.Ct. 1894]; suggesting that an 8-month pregnant woman could be required to have blood transfusions to protect the unborn child.)
Although sections 3705 and 3706 of the Penal Code, which provide for suspending the execution of a pregnant woman, reflect an interest in the unborn child, the sections do not affect any other significant private interest and thus furnish no basis to evaluate the interest protected or to conclude that the embryo or fetus is equivalent to a born child.
In any event, there are major and decisive areas where the embryo and fetus are not treated as equivalent to the born child. Probably the most important is reflected by the statute before us. The intentional destruction of the born child is murder or manslaughter. The intentional destruction of the embryo or fetus is never treated as murder, and only rarely as manslaughter but rather as the lesser offense of abortion. (Perkins, Criminal Law, supra, p. 103; Means, supra, 14 N YL.F. at p. 445.)
One case has held that, for purposes of the manslaughter and murder statutes, human life may exist where childbirth has commenced but has not been fully completed. ( People v. Chavez, 77 Cal.App.2d 621, 624, 626 [ 176 P.2d 92].)
Furthermore, the law has always recognized that the pregnant woman's right to life takes precedence over any interest the state may have in the unborn. The California abortion statutes, as do the abortion laws of all 51 United States jurisdictions, make an exception in favor of the life of the prospective mother. (See Stern, Abortion: Reform and the Law, supra, 59 J.Crim.L.C. P.S. 84, 86-87; George, Current Abortion Laws: Proposals Movements for Reform (1965) 17 W.Res.L.Rev. 366, 375.) Although there may be doubts as to whether the state's interest may ever justify requiring a woman to risk death, it is clear that the state could not forbid a woman to procure an abortion where, to a medical certainty, the result of childbirth would be death. We are also satisfied that the state may not require that degree of risk involved in respondent's definition, which would prohibit an abortion, where death from childbirth although not medically certain, would be substantially certain or more likely than not. Accordingly, the definition of the statute suggested by respondent must be rejected as an invalid infringement upon the woman's constitutional rights.
Another definition of the term "necessary to preserve" is suggested by People v. Abarbanel, supra, 239 Cal.App.2d 31, 32, 34, where the court held that an abortion was not unlawful where the obstetrician performed the abortion based on the "possibility" of suicide. Abarbanel might be understood as meaning that "necessary to preserve" refers to a possibility of death different from or greater than the ordinary risk of childbirth. To so interpret "necessary to preserve" would mean that in nearly every case, if not all, a woman who wished an abortion could have one. A woman who is denied a desired lawful abortion and forced to continue an unwanted pregnancy would seem to face a greater risk of death, because of psychological factors, than the average woman, because the average includes all those women who wish to bear the child to term. The psychological factor alone, which under Abarbanel is a proper consideration, would seem to be decisive. Such a construction of the statute permitting voluntary abortions would render the statute virtually meaningless. Moreover to determine the right to an abortion solely on the basis of the dangers of childbirth without regard to the relative dangers of the abortion would be contrary to good medical practice.
[9] Nor can the statute be made certain by reading it as "substantially or reasonably" necessary to preserve the life of the mother. In the present context those terms are not sufficiently precise and would be subject to such different interpretations as to add little or nothing to "necessary." Thus, many people may feel that an abortion is reasonably or substantially necessary to preserve life where the risk of death is double or triple the ordinary risk in childbirth. Others may believe that anything which increases the possibility of death is a substantial risk which is not to be undertaken in the absence of countervailing considerations, so that "reasonably necessary" or "substantially necessary" becomes as destructive of the statute as "possibility of death." On the other hand, there may be those who feel that there is no reasonable or substantial necessity until it is more likely than not that the pregnant woman will not survive childbirth. Although in other contexts the implication of words such as "reasonably" and "substantially" may add certainty and avoid other due process objections, in the instant situation the implication of such words would merely increase the uncertainty.
[10] There is one suggested test which is based on a policy underlying the statute and which would serve to make the statute certain. The test is probably in accord with the legislative intent at the time the statute was adopted. The Legislature may have intended in adopting the statute that abortion was permitted when the risk of death due to the abortion was less than the risk of death in childbirth and that otherwise abortion should be denied. As we have seen, at the time of the adoption of the statute abortion was a highly dangerous procedure, and under the relative safety test abortion would be permissible only where childbirth would be even more dangerous. In light of the test and the then existing medical practice, the question whether abortion should be limited to protect the embryo or fetus may have been immaterial because any such interest would be effectuated by limiting abortions to the rare cases where they were safer than childbirth.
The suggested test would involve an application of medical principles. Medical science may be able to tell us the proper method to treat a patient to minimize the risk of death, but without resort to matters outside medical competence, it cannot tell us the circumstances in which the safest treatment should be rejected and a more dangerous treatment followed in order to protect an embryo or fetus.
The new Therapeutic Abortion Act (Health Saf. Code, §§ 25950-25954), has adopted a test analogous to the suggested one. Under the new statute, abortion is permissible during the first 20 weeks of pregnancy by a licensed physician in an accredited hospital (Health Saf. Code, §§ 25951, 25953) if it is determined under prescribed procedures either that "There is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother" (Health Saf. Code, § 25951, subd. (c) (1)), or that "The pregnancy resulted from rape or incest." (Health Saf. Code, § 25951, subd. (c) (2).) Mental health includes mental illness to the extent that the woman would be dangerous to herself. (Health Saf. Code, § 25954.) By limiting the abortion to the first 20 weeks, the Legislature has taken into account the danger to the mother of the later abortion and, by requiring the abortion to be performed by a licensed physician in an accredited hospital, has recognized the danger to the mother of other procedures. The further criteria for determining whether an abortion is permissible is the pregnant woman's physical and mental health. Thus, the test established is a medical one, whether the pregnant woman's physical and mental health will be furthered by abortion or by bearing the child to term, and the assessment does not involve considerations beyond medical competence. There is nothing to indicate that in adopting the Therapeutic Abortion Act the Legislature was asserting an interest in the embryo.
Although the suggested construction of former section 274, making abortion lawful where it is safer than childbirth and unlawful where abortion is more dangerous, may have been in accord with legislative intent, the statute may not be upheld against a claim of vagueness on the basis of such a construction. The language of the statute, "unless the same is necessary to preserve her life," does not suggest a relative safety test, and no case interpreting the statute has suggested that the statute be so construed. None of the parties or numerous amici who have filed briefs in the instant case suggest that the statute applies a relative safety test; to the contrary, the position of the parties and amici, including numerous lawyers, doctors, educators, clergymen and laymen, implies that the statute does not apply that standard. Thus, those claiming the statute is invalid urge that the only valid standard would be a relative safety test and that the statute fails to adopt such a test, and those urging the validity of the statute either state or imply that the standard applied is more restrictive. In the circumstances, we are satisfied that the statute may not be construed to adopt the relative safety test as against a claim of vagueness, because the language does not suggest that test and because of the practical evidence before us that men of "common" intelligence, indeed of uncommon intelligence, have not guessed at this meaning. [11] The problem caused by the vagueness of the statute is accentuated because under the statute the doctor is, in effect, delegated the duty to determine whether a pregnant woman has the right to an abortion and the physician acts at his peril if he determines that the woman is entitled to an abortion. He is subject to prosecution for a felony and to deprivation of his right to practice medicine (Bus. Prof. Code, § 2377) if his decision is wrong. Rather than being impartial, the physician has a "direct, personal, substantial, pecuniary interest in reaching a conclusion" that the woman should not have an abortion. The delegation of decision-making power to a directly involved individual violates the Fourteenth Amendment. ( Tumey v. Ohio (1927) 273 U.S. 510, 523 [71 L.Ed. 749, 754, 47 S.Ct. 437, 50 A.L.R. 1243]; see also State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, Inc., 40 Cal.2d 436, 448 [ 254 P.2d 29] ["[T]he statute assumes to confer legislative authority upon those who are directly interested in the operation of the regulatory rule. . . ."]; Blumenthal v. Board of Medical Examiners, 57 Cal.2d 228, 235 [ 18 Cal.Rptr. 501, 368 P.2d 101].)
The practical aspects of the need to guess at the meaning of the abortion statute is shown by Packer Gampell, Therapeutic Abortion: A Problem in Law and Medicine (1959) 11 Stan.L.Rev. 417. A questionnaire survey directed to 29 San Francisco Bay Area and Los Angeles hospitals ( id., at p. 423) based on hypothetical cases involving pregnant women seeking abortions yielded the following results ( id., at p. 444):
Author's Evaluation Hospital Would Case of Legality of Perform Abortion No. Abortion
Yes
No ------------------------------------------------------------------ 1 Yes 21 1 2 No 10 12 3 No 6 16 4 No 15 7 5 No 8 13 6 No 8 14 7 Yes 17 4 8 No 5 17 9 Prob.Yes 10 11 10 Maybe 17 4 11 No 1 20
The inevitable effect of such delegation may be to deprive a woman of an abortion when under any definition of section 274 of the Penal Code, she would be entitled to such an operation, because the state, in delegating the power to decide when an abortion is necessary, has skewed the penalties in one direction: no criminal penalties are imposed where the doctor refuses to perform a necessary operation, even if the woman should in fact die because the operation was not performed.
The pressures on a physician to decide not to perform an absolutely necessary abortion are, under section 274 of the Penal Code, enormous, and because section 274 authorizes — and requires — the doctor to decide, at his peril, whether an abortion is necessary, a woman whose life is at stake may be as effectively condemned to death as if the law flatly prohibited all abortions.
To some extent the Therapeutic Abortion Act reduces these pressures. The act specifically authorizes an abortion by a licensed physician in an accredited hospital where the abortion is approved in advance by a committee of the medical staff of the hospital, applying medical standards. (Health Saf. Code, § 25951.) At least in cases where there has been adherence to the procedural requirements of the statute, physicians may not be held criminally responsible, and a jury may not subsequently determine that the abortion was not authorized by statute.
[1b] We conclude that the validity of section 274 of the Penal Code before amendment cannot be sustained.
It has been urged that the Therapeutic Abortion Act is unconstitutional because it contains uncertainties similar to those in the repealed statute, because it infringes on the woman's right to choose whether to bear children, and because the act does not expressly permit an abortion where there is a likelihood that a deformed child will be born. Since the act was adopted after the abortion in the instant case, we do not reach the issue of its validity.
Since section 274 is invalid, Dr. Belous' conviction for violation of section 182 of the Penal Code, conspiracy to commit abortion, must likewise fall. The judgment is reversed with directions to the trial court to dismiss the indictment.
Traynor, C.J., Tobriner, J., and Pierce, J. pro tem., concurred.
Assigned by the Chairman of the Judicial Council.