Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 90-926
of :
:
DANIEL E. LUNGREN : JUNE 25, 1991
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
__________________________________________________________________
THE HONORABLE DAVID ROBERTI, MEMBER OF THE SENATE, has
requested an opinion on the following question:
Under California law is it legal for anyone other than a
licensed physician to perform an abortion and if so, under
what circumstances?
CONCLUSION
Under California law only a licensed physician may
perform an abortion.
ANALYSIS
Abortion is the deliberate termination of pregnancy by
causing a miscarriage of the woman. (Cf. People v. Belous (1969)
71 Cal. 2d 954, 969, cert. den. (1970) 397 U.S. 915; People v.
Wilson (1942) 54 Cal. App. 2d 434, 448; People v. Luckett (1937) 23
Cal. App. 2d 539, 540-541.) Except in cases when it was necessary to
save life of the mother, abortion was generally proscribed in
California from admission until 1967. (Stats. 1850, ch. 99, p.
233, § 45; Stats. 1935, ch. 528, p. 1605, § 1; cf. People v.
Barksdale (1972) 8 Cal. 3d 320, 326; People v. Belous, supra, 71
Cal.2d at 959.) In that year the Legislature enacted the
Therapeutic Abortion Act ["the Act"] (Health & Saf. Code, § 25950
et seq.) to extend the lawful grounds for which an abortion could
be obtained and to delineate the circumstances under which one
might be performed. (Stats. 1967, ch. 327, p. 1521, § 1.) The
same chapter of legislation also amended the provisions of the
Penal Code dealing with abortion to reflect those new parameters.
(Stats. 1967, ch. 327, p. 1523, § 3, amending Pen. Code, §§ 272­
276.)
1. 90-926
While major provisions of the Therapeutic Abortion Act
have been declared unconstitutional our Supreme Court has said that
they are severable from the rest. (Cf. People v. Barksdale, supra,
8 Cal.3d at 333, 334; see also, People v. Orser (1973) 31
Cal. App. 3d 528, 536; 65 Ops.Cal.Atty.Gen. 261, 266-267 (1982).) We
will conclude that "shorn of its invalid provisions" ( People v.
Orser, supra), the remainder in conjunction with section 274 of the
Penal Code provides the answer to the question asked, i.e., who may
perform an abortion in California. The answer will be that only a
licensed physician may do so.
Section 274 of the Penal Code currently provides 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, except as provided in the
Therapeutic Abortion Act, Chapter 11 (commencing with
Section 25950) of Division 20 of the Health and Safety
Code, is punishable by imprisonment in the state prison."
(Pen. Code, § 274 as amended by Stats. 1967, ch. 327, p.
1523, § 3; Stats. 1976, ch. 1139, p. 5109, § 167.)
Section 274 is thus "directed toward the abortionist" ( People v.
Belous, supra, 71 Cal.2d at 969) and makes it illegal for anyone to
perform an abortion except pursuant to the provisions of the
Therapeutic Abortion Act, i.e., sections 25950 through 25958 of the
Health and Safety Code.1 We must therefore examine that Act to
see who can perform an abortion in California. That not only takes
us to examine its wording, which is relatively simple for our
purposes, but also to determine whether judicial pronouncements
rendered subsequent to its enactment have left any of it still
enforceable.
Section 25951 of the Health and Safety Code, here
annotated with other salient provisions of the Therapeutic Abortion
Act, provides as follows:
"A holder of the physician's and surgeon's
certificate, as defined in the Business and Professions
Code, is authorized to perform an abortion or aid or
assist or attempt an abortion, only if each of the
following requirements is met:
1
We were originally asked who may perform a "surgical"
abortion under California law. Section 274 does not differentiate
among the ways an abortion might be produced, i.e., on the
abortifacient that is employed, and our answer does not depend on
that.
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"(a) The abortion takes place in a hospital which is
accredited by the Joint Commission on Accreditation of
Hospitals.
"(b) The abortion is approved in advance by a
committee of the medical staff of the hospital, which
committee is established and maintained in accordance
with standards promulgated by the Joint Commission on
Accreditation of Hospitals. [The committee may never
consist of fewer than two licensed physicians and
surgeons and a committee of three is required if the
proposed termination of pregnancy occurs after the 13 th
week. (§ 25953.) Unanimous consent is required where
the committee consists of no more than three members.
(§ 25951, subd. (b).)]
"(c) The Committee of the Medical Staff finds that
one or more of the following conditions exist: [¶](1)
There is substantial risk that the continuance of the
pregnancy would gravely impair the physical or mental
health of the mother (cf. § 25954 defining "mental
health" as "mental illness to the extent that the woman
is dangerous to herself or to the person or property of
others or is in need of supervision or restraint."];
[¶](2) The pregnancy resulted from rape or incest.
[Before a committee may approve an application on this
ground, it must submit the application to the district
attorney for his or her evaluation and determination that
probable cause exists to believe that the pregnancy did
result from rape or incest (§ 25952, subd. (a); if the
D.A. finds that not to have been the case, a procedure
for judicial review and determination of the matter is
provided (id., subd. (b)).]"
[In no event may a termination of pregnancy be approved
after the 20th week. (§ 25953, last sent.)]
In People v. Barksdale, supra, 8 Cal. 3d 320, our Supreme
Court held that many of these provisions were unconstitutional and
unenforceable: It found that those setting forth the medical
criteria upon which abortions could be approved (i.e., § 25951,
subds. (b),(c); § 25954) were "so imprecise" as to be
"impermissibly vague" and "not sufficiently certain to meet minimal
standards of due process." (8 Cal.3d at 328, 332.) Consequently
it also found that those establishing medical committees and their
procedures (§ 25951, subd.(b); 25953, sent. #1) and those that
brought involvement of district attorneys and courts into the
abortion equation in cases of rape and incest (§ 25952) were
3. 90-926
invalid because without valid criteria upon which to operate, they
had no independent functional purpose. (8 Cal.3d at 338.)2
What remained were (i) the provision of the Act requiring
abortions to be performed by licensed physicians and surgeons
(§ 25952, preamble); (ii) the provision requiring abortions to be
performed in hospitals accredited by the Joint Commission on
Accreditation of Hospitals (id., subd. (a); and (iii) the provision
forbidding abortions after the 20 th week of pregnancy (§ 25953,
last sentence). These provisions were held to be distinct from the
invalid ones, and severable from them. (8 Cal.3d at 334.) The
court found them constitutionally valid. ( Id., at 334-338; see
also, 50 Ops.Cal.Atty.Gen. 114, 115 (1967) [requiring JCAH
accreditation].) In summary, the court concluded as follows:
"We conclude that Penal Code section 274 is valid in
its entirety. We perceive no constitutional impediments
to ... those portions of section 25951 that require
abortions to be performed by holders of physician's and
surgeon's certificates in hospitals accredited by the
Joint Commission on Accreditation of Hospitals, and to
that portion of section 25953 limiting the performance of
abortions to the first 20 weeks of pregnancies." (8
Cal.3d at 338.)
However, exactly two months after Barksdale was decided the United
States Supreme Court rendered decisions in Doe v. Bolton (1973) 410
U.S. 179 and Roe v. Wade (1973) 410 U.S. 113. As discussed in two
prior Opinions of this Office, 65 Ops.Cal.Atty.Gen. 261 (1982) and
57 Ops.Cal.Atty.Gen. 58 (1974), those decisions call into question
the validity of the last two of the above-described three
conditions of the Therapeutic Abortion Act that remained after
Barksdale.
A. The Limitation In Section 25953 That All Abortions
Must Be Performed Within The First Twenty Weeks of Pregnancy .
Under the Roe analysis, a state's ability to proscribe all
abortions is based on its "important and legitimate interest" in
protecting the potentiality of human life, i.e., the fetus. But
that interest only becomes "compelling" and exercisable at the
point in a pregnancy when the fetus has become viable, i.e., when
it is "potentially able to live outside the mother's womb, albeit
with artificial aid.[]" (Roe v. Wade, supra, 410 U.S. at 160, cf.
2
See also, Doe v. Bolton (1973) 410 U.S. 179, 195-198
[interposition of a hospital abortion committee is unduly
restrictive of the mother's right to receive medical care in
accordance with her licensed physician's best judgment], 198-200
[required acquiescence by co-practitioners has no rational
connection with the patient's needs and unduly infringes on her
physician's right to practice].
4. 90-926
id., at 163; but see Webster v. Reproductive Health Serv. (1989)
492 U.S. __; 106 L. Ed. 2d 410, 436.) The Roe court found that a
state may not proscribe abortions before that time; and it may only
do so afterwards in cases where an abortion is not "necessary to
preserve the life or health of the mother." (Roe v. Wade, supra at
164; cf. Id., at 159, 163-165; 65 Ops.Cal.Atty.Gen. supra, at 263.)
In addition, a state may not statutorily fix a particular number of
weeks (or prescribe another determinant) to say when viability
occurs so as to exercise its interest in protecting the fetus by
banning all abortions thereafter. (Colautti v. Franklin (1979) 439
U.S. 379, 388-389; Planned Parenthood of Missouri v. Danforth
(1976) 428 U.S. 52, 63-65; Wolfe v. Schroering (W.D. Ky. 1974) 388
F. Supp. 631, 637; Hodgson v. Anderson (D. Minn. 1974) 378 F. Supp.
1008, 1016-1017; 65 Ops.Cal.Atty.Gen., supra, at 263.)
In 65 Ops.Cal.Atty.Gen. 261, supra, we concluded upon
these authorities that the proscription of the last sentence of
section 25953 which banned all abortions after the 20 th week of
pregnancy was unconstitutional. This was because it prevented
abortions which might be necessary to preserve the life or health
of the mother after that time, and because it forbade abortions
between the 20th week of pregnancy and the time when a fetus would
be viable.3 (65 Ops.Cal.Atty.Gen. at 265.) But we "corrected"
that unconstitutional overbreadth of the section by "letting its
proscription against abortion after the 20th week of pregnancy
stand but [limiting it] to those abortions which may
constitutionally be banned." (Ibid.)
B. The Requirement That Abortions Be Performed In JCAH
Hospitals. Subdivision (a) of section 25952 of the Therapeutic
Abortion Act provides that as a requirement for a physician to
perform an abortion, that "[t]he abortion take[] place in a
hospital which is accredited by the Joint Commission on
Accreditation of Hospitals."
As stated in Roe, a State's ability to regulate in this
manner and prescribe the type of facility in which abortions are to
be performed may only take place "to the extent that the regulation
reasonably relates to the preservation and protection of maternal
health." (410 U.S. at 163, 164; see also, Akron v. Akron Center
For Reproductive Health (1983) 462 U.S. 416, 430-431, 433, 434,; 57
Ops.Cal.Atty.Gen. 28, 31, supra.) Accordingly, the High Court has
held that a State (or a local agency) may not require all second-
3
"Viability is usually placed at about seven months (28 weeks)
but may occur earlier, even at 24 weeks.[]" (Roe v. Wade, supra,
410 U.S. at 160; see also, Hodgson v. Anderson, supra, 578 F.Supp.
at 1016; but see Webster v. Reproductive Health Serv., supra, 106
L.Ed.2d at 434 [23½ to 24 weeks gestation is the earliest point in
pregnancy where a reasonable possibility of viability exists, but
there may be a 4-week error in estimating gestational age].)
5. 90-926
trimester abortions to be performed in general acute-care, full-
service hospitals because that is not medically necessary to
protect a woman's health. ( Planned Parenthood Assn. v. Ashcroft
(1983) 462 U.S. 476, 481-482; Akron v. Akron Center For
Reproductive Health, supra at 431-439; Doe v. Bolton, supra, 410
U.S. at 195.) In addition, the United States Supreme Court has
cited a lack of medical justification to specifically strike down
a JCAH-accreditation requirement. ( Planned Parenthood Assn. v.
Ashcroft, supra, 462 U.S. at 481-482; Akron v. Akron Center For
Reproductive Health , supra, 462 U.S. at 432-434; Doe v. Bolton,
supra, 410 U.S. at 193-195, 201 [first- and second-trimester
abortions].) We conclude that the requirement of subdivision (a)
of section 25952, that all California abortions be performed in
hospitals which have been accredited by the JCAH, would not be
sustainable under the Supreme Courts expressed line of reasoning.
What then is left of the original Therapeutic Abortion
Act? That would be the preamble to section 25951 and the last
sentence of section 25953 as construed by our prior Opinion, thus:
"A holder of the physician's and surgeon's
certificate, as defined in the Business and Professions
Code, is authorized to perform an abortion or aid or
assist or attempt an abortion, only if each of the
following requirements is met:
"(a) The abortion takes place in a [JCAH] hospital.
"(b) The abortion is approved in advance by a
committee of the medical staff of the hospital....
"(c) The Committee of the Medical Staff finds...."
(§ 25951.)
"In no event may a termination of pregnancy be
approved after the 20th week [the fetus becomes viable,
except to preserve the life or health of the mother]."
(§ 25953.)
Section 274 of the Penal Code makes it illegal to perform
an abortion in California "except as provided in the Therapeutic
Abortion Act...." The provisions of that Act state that a
physician may perform an abortion only if certain requirements are
met. But those requirements are no longer constitutionally valid.
Does this mean that the statutory scheme in its entirety must fall,
or is there still a valid statement left that only physicians may
perform abortions?
As mentioned at the outset, in People v. Barksdale the
California Supreme Court found the provisions of the Therapeutic
Abortion Act were severable, and that shorn of its invalid
provisions, it still permitted abortions to be performed pursuant
6. 90-926
to its remaining terms. (8 Cal.3d at 333-334, 338, 339; see also,
People v. Orser, supra, 31 Cal.App.3d at 536.) Fewer valid
provisions remain now, but one of them still "require[s] abortions
to be performed by holders of physician's and surgeon's
certificates." (§ 25951, preamble, as paraphrased in People v.
Barksdale, supra at 338.) In Barksdale the Court "perceive[d] no
constitutional impediment" to that requirement. (8 Cal.3d at 338.)
That continues to correctly state the law in the situation even
after Roe v. Wade and its progeny.
In Connecticut v. Menillo (1975) 423 U.S. 9, the High
Court specifically held that Roe did not require the invalidation
of the provisions of state abortion statutes that prohibited
nonphysicians from performing abortions even though the other
provisions of those statutes were no longer valid in light of that
case:
"In Roe we held that ... the Texas abortion statutes
had to fall ``as a unit,' [citation], and it is that
statement which the Connecticut Supreme Court and courts
in some other States have read to require the
invalidation of their own statutes even as applied to
abortions performed by nonphysicians.[] In context,
however, our statement had no such effect. .... [¶]
[T]he rationale of our decision supports continued
enforceability of criminal abortion statutes against
nonphysicians. Roe teaches that a State cannot restrict
a decision by a woman, with the advice of her physician,
to terminate her pregnancy during the first trimester
because neither its interest in maternal health nor its
interest in the potential life of the fetus is
sufficiently great at that stage. But the insufficiency
of the State's interest in maternal health is predicated
upon the first trimester abortion's being as safe for the
woman as normal childbirth at term, and that predicate
holds true only if the abortion is performed by medically
competent personnel under conditions insuring maximum
safety for the woman. [Citation.] Even during the first
trimester of pregnancy, therefore, prosecutions for
abortions conducted by nonphysicians infringe upon no
realm of personal privacy secured by the Constitution
against state interference. And after the first
trimester the ever-increasing state interest in maternal
health provides additional justification for such
prosecutions. [¶] As far as this Court and the Federal
Constitution are concerned, Connecticut's statute remains
fully effective against performance of abortions by
nonphysicians." (423 U.S. at 10-11; emphases added;
accord Akron v. Akron Center For Reproductive Health,
supra, 462 U.S. at 447.)
7. 90-926
More recently the Court has said that "on this basis ... it is
[still] permissible for the States to impose criminal sanctions on
the performance of an abortion by a nonphysician." (Akron v. Akron
Center For Reproductive Health, supra, 462 U.S. at 430 fn. 12; see
also, Hodgson v. Anderson, supra, 378 F.Supp. at 1016.)
California has done so in section 274 of the Penal Code,
which remains "valid in its entirety" (People v. Barksdale, supra,
8 Cal.3d at 338), in conjunction with the preamble to section 25952
of the Therapeutic Abortion Law, the validity of which has never
been questioned. Upon those statutes we conclude that only a
licensed physician may perform an abortion.
However, one final matter must be discussed. Suggestion
has been made that section 3502 of the Physician Assistant Practice
Act (Bus. & Prof. Code, § 3500 et seq.) and the regulations of the
Division of Allied Health Professions of the Board of Medical
Quality Assurance provide special authority for physician
assistants to perform abortions in California. Section 3502
provides that "Notwithstanding any other provisions of law, a
physician assistant may perform those medical services as set forth
by regulations of the [Division of Allied Health Professions] when
such services are rendered under the supervision of a licensed
physician...." The implementing regulations of the Division
essentially permit a physician assistant to perform any procedure,
consistent with his or her competency, education, training, and
experience, that has been delegated by a supervising physician.
(See e.g. 16 Code Cal.Regs. §§ 1399.540, 1399.541(b),(c),
1399.542.)
It is true that the phrase "notwithstanding any other
provision of law" usually indicates that the provisions of a
statute are to be considered sui generis and take precedence over
all other law. (See In re Marriage of Dover (1971) 15 Cal. App. 3d
675, 678 fn. 3; State of California v. Superior Court (1965) 238
Cal. App. 2d 691, 695-696.) Nevertheless, we decline to accept the
suggestion that the carte blanche of section 3502 coupled with the
broad language of the implementing regulations provides authority
for physician assistants to perform abortions when delegated to do
so by a supervising physician, "notwithstanding" the provisions of
section 274 of the Penal Code and those of the Therapeutic Abortion
Act.
The authority accorded physician assistants by section
3502 and the Division's regulations is found in the context of
describing the scope of their professional practice. In contrast,
the prohibition contained in section 274 of the Penal Code appears
in an entirely different setting; it defines criminal activity and
represents a long standing policy against the performance of
abortions except as is specifically permitted by law. Consistent
with that the Therapeutic Abortion Act was carefully crafted after
considerable deliberation to permit physicians, and physicians
8. 90-926
alone, to perform abortions in particularly described circumstances
without violating the Penal Code's prohibition.
Thus we cannot accept the notion that the Legislature
meant to gainsay that carefully tailored and highly specific
determination when it later adopted the general language of the
Physician Assistant Practice Act. Moreover, if the delegation of
authority in section 3502 were construed as broadly suggested,
substantial question regarding its constitutionality would arise
(cf. Kugler v. Yocum (1968) 69 Cal. 2d 371, 375-377; CREED v.
California Coastal Zone Conservation Com. (1974) 43 Cal. App. 3d 306,
325; 71 Ops.Cal.Atty.Gen. 296, 299 fn. 2 (1988), and if the
Division's regulations were construed without heed to the
provisions of the Penal Code, question of their validity would be
raised (Agricultural Labor Relations Bd. v. Superior Court (1976)
16 Cal. 3d 392, 419-420; Morris v. Williams (1967) 67 Cal. 2d 733,
737).
We therefore conclude that a physician assistant may not
perform an abortion in California. Under California law, only a
licensed physician may do so.
* * * * *
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