Untitled California Attorney General Opinion

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.)

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 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

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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].

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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].)

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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

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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.)

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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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