specially concurring.
I concur with the result reached in the majority opinion. The indictment in this case does not state facts sufficient to state a crime as against a duly licensed physician and surgeon.
Because of the importance of this decision to the medical profession as a whole, as well as to the public in general, and, particularly, to law enforcement officials, I propose to express my views at some length.
There is but one basic issue in this case. That issue involves the question whether the medical practice act authorizes duly licensed physicians and surgeons to perform lawfully an abortion as defined in that law, for the purpose and under the conditions therein prescribed.
The majority holds that it does. With that holding I am in complete accord, as well as with the argument advanced in support thereof both in the majority *117opinion and the specially concurring opinion of Mr. Justice Bossman. The minority takes precisely the opposite view. It is their opinion that the medical practice act does not make lawful the performance of an abortion (as defined in the medical practice act) by a duly licensed physician and surgeon upon a woman whose health appears in peril because of her pregnant condition (after due consultation with another duly licensed physician and surgeon), and that if such an abortion is performed, the operating physician and surgeon, although his license to practice medicine and surgery may not be revoked on account thereof, may, nevertheless, be prosecuted for manslaughter under the so-called criminal abortion statute.
The entire argument of the minority is devoted to its attempt to bolster that conclusion. Every student of the law will recognize the truism that if such conclusion is false, then it necessarily follows that the entire discussion in support thereof is wholly irrelevant, immaterial, and needs no reply.
I do not disagree with the principles stated in most of the numerous cases cited and quoted from in the minority opinion, nor with the rules of statutory construction to which attention is called. In fact, all members of the court agree upon most of the principles of law stated in both the majority and minority opinions; our disagreement lies in the proper application of those principles to the problem before us. It is my opinion that the principles stated do not warrant or justify the ultimate conclusion of the minority as herein-before stated.
In my judgment, it is clearly demonstrated in the majority opinion, as well as in the opinion of Mr. Justice Bossman, that the conclusion reached by the *118minority is unsound, and, if adopted, would lead to absurd results. Upon tbe basic issue in this case and for the purposes of this opinion, I adopt in its entirety the opinion of Mr. Justice Bossman.
In the construction of statutes, when construction is necessary or proper, the primary and governing rule to be followed and the one that is law and binding upon the court is to ascertain and declare the legislative intent. All other rules of statutory construction are secondary in importance and are simply guides to aid in the application of the primary rule. However, in some- decisions these guides have been used as the basis for a lot of mental gymnastics which, in many instances, have simply added confusion to confusion, and have created ambiguities where in truth no ambiguities existed.
Sections 2-216, 2-217, and 2-223, OCLA, provide as follows:
“§ 2-216. * * * In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.” (Italics supplied.)
“§2-217. Intention to govern: General and particular provisions and intents. In the construction of a statute the intention of the legislature, and in the construction of an instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provisions are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.” (Italics supplied.)
“§ 2-223. Which of two interpretations of statute to prevail. Where a statute is equally suseep*119tibie of two interpretations, one in favor of natural right, and the other against it, the former is to prevail.”
The foregoing rules are binding as law upon the court. They comprise a legislative declaration of how its acts shall be construed.
A court is never permitted to resort to and apply rules of statutory construction, in order to reach a conclusion which it may deem desirable, where the language of the statute is plain and unambiguous. It is axiomatic that when the legislature in adopting an act makes use of plain, unambiguous, and understandable language, it is presumed to have intended precisely what its words imply. There is no occasion to go beyond those words and their plain meaning to ascertain, by the application of rules of statutory construction, the legislative purpose. Fox v. Galloway, 174 Or 339, 347, 148 P2d 922, 925; 82 CJS 571, Statutes, § 322b (1), (2).
It will be conceded, I am sure, that § 23-408, OCLA, commonly known as the criminal abortion statute, is plain, unambiguous, and couched in understandable language. That also is true, in my opinion, of the medical practice act. In both acts the intention of the legislature clearly appears from the language employed.
In the majority’s several discussions of the basic problem before us, reference is made to the legislative history of the medical practice act. That is proper, but not necessary. It is proper simply because it furnishes additional proof that our conclusion upon the basic issue respecting the intent and purpose of the legislature, as determined from the language used in the act, is correct. An examination of the act will *120conclusively show that the language used throughout is plain and understandable. It presents no ambiguities. If the law as it now stands were an initial enactment without any prior legislative history, its clear intent and purpose would be and is readily ascertainable from the language employed, and, hence, recourse to rules of statutory construction is unnecessary. 82 CJS 577, Statutes, § 322b (2).
From the language used it is crystal clear that the sole purpose of the act is to license (permit), control, and regulate the practice of medicine and surgery in this state. Every provision of the law is directed to that end. It is a law which is definite, specific, and complete in its terms. Because of the highly specialized training that is necessary to equip one to diagnose and treat the ills of the human body, the law provides a rigid set of qualifications and a technical examination for one who aspires to obtain a license to practice medicine and surgery in this state. Once a license is issued, the act provides a set of definitions (abortion included) and a specific code of discipline for the control and regulation of the licensee, together with a meticulous statement as to the conduct of disciplinary proceedings. The law creates a Board of Medical Examiners, as an agency of the state, to administer the provisions of the act, and prescribes in detail the power and duties of the Board.
A licensee who complies with the provisions of the law is protected in his right to follow his chosen profession. However, if he commits one or more of certain offenses as minutely spelled out in the act, his license may be revoked, and his right to practice medicine and surgery in this state forever terminated.
*121The statute (§ 54-931, OCLA) lists 17 separate and distinct offenses, for the commission of any of which a license may be revoked. The second offense enumerated is:
“(b) The procuring or aiding or abetting in procuring an abortion unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition * * Italics supplied.)
It is manifest that the provisions in the act relative to abortions do not constitute the gist of the law; they are but mere incidents to the law’s principal purpose — the control and regulation of licensed physicians and surgeons.
The abortion mentioned above is the abortion defined in the medical code. If such an abortion is performed, the license may be revoked, unless it is done for the relief of a woman whose health appears in peril, etc., which is equivalent to saying affirmatively that it may be done and the license of the physician and surgeon may not be revoked, if it is done for the relief of a woman whose health appears in peril, etc. Affirmative words in a statute ordinarily imply a negative of what is not affirmed, and negative words therein imply the affirmative of what is not negated. 82 CJS 675, Statutes, § 336.
However, we are primarily concerned in this case with what effect the medical practice act has upon proceedings under the manslaughter statute. For that purpose, the history of the medical practice act is important. It is my opinion that the act changes prior existing laws in two important respects.
As is so conclusively demonstrated by Mr. Justice Rossman, the first and most important effect of the medical code is that it gives authority to duly licensed *122physicians and surgeons to perform lawfully certain abortions which, prior to the adoption thereof in its present form, constituted manslaughter under the provisions of § 23-408, OCLA.
The second consideration is in what particulars the manslaughter act has been affected by this legislation for the regulation and control of duly licensed physicians and surgeons.
It is manifest that a duly licensed physician and surgeon would not be amenable to the manslaughter statute for an abortion performed by him according to the terms of the medical practice act, such an abortion being a lawful one, because the same act or course of conduct cannot be both lawful and unlawful at the same place and time and under the same circumstances. Winslow v. Fleischner et al., 112 Or 23, 27, 228 P 101. So to that extent, at least, the manslaughter statute has been affected. It is wholly immaterial whether that conclusion is reached upon the theory of an implied repeal, an implied amendment, or an implied modification.
Although I concur in the result reached in the majority opinion and agree that the indictment in this case fails to state facts sufficient to state a crime against a duly licensed physician and surgeon, nevertheless, I am disposed to go further than its holding as to the effect the provisions of the medical code relative to abortions has upon the manslaughter statute. It is my belief that the medical practice act takes complete jurisdiction over the instances to which it is applicable, and therefore, wherever it applies, the sole penalty for a breach of its conditions is revocation of license, except where otherwise in the act itself a different penalty is provided.
*123Until the Act of 1987 was passed amending the medical practice act, physicians and surgeons, as well as all other persons, were amenable to the criminal abortion statute for an abortion performed during any stage of pregnancy. To that time the medical practice act itself referred to criminal abortions. Because of such references, and when proper, the provisions of the manslaughter statute were considered in connection with those of the medical practice act as respects abortions. State v. Ausplund, 86 Or 121, 167 P 1019; Board of Medical Examiners v. Eisen, 61 Or 492, 123 P 52; State v. Atwood, 54 Or 526, 102 P 295, 104 P 195; State v. Clements, 15 Or 237, 14 P 410.
In 1937 the legislature made a definite change in public policy as to abortions performed by duly licensed physicians and surgeons.- The term “criminal abortion” was entirely eliminated from the medical practice act. In 1939 the legislature wrote a definition of abortion in the medical practice act, the first time “abortion” had been defined in this state. That definition was a new one. It covers more than was covered in the definition of abortion at common law. That definition was written solely for the guidance of physicians and surgeons; it applied to no one else.
By dropping from the medical practice act the term “criminal abortion” which had appeared therein continuously for more than 40 years, and substituting therefor what it did, the legislature, in my opinion, indicated a clear intent to remove doctors entirely from liability under the criminal abortion statute for abortions performed as defined in the medical code. That is to say, I am firmly convinced that no duly licensed physician and surgeon is amendable to the provisions of § 23-408, OCLA, for an abortion performed by him, involving “the expulsion of the foetus *124at a period of uterogestation so early that it has not acquired the power of sustaining an independent life”, as defined in the medical practice act, for the reason that his conduct is regulated and governed exclusively by the provisions of §§ 54-901 to 54-945, OCLA, as amended (the medical practice act).
The medical practice act goes no further than to authorize an abortion under certain circumstances by those persons deemed by the state to be qualified to perform this act, and recognizes the distinction between an abortion at common law and a homicide; while the criminal abortion statute contemplates a homicide by the destruction of the foetus at any time during the period of gestation, extending the common-law rule of “quick with child” to the “moment of conception”.
Under the manslaughter statute, all abortions except those necessary to preserve the life of the mother are prohibited and made unlawful. On its face the act applies to all persons, and but for the provisions of the medical practice act would also include duly licensed physicians and surgeons. Prior to the amendment of 1937, they were included. Insofar as duly licensed physicians and surgeons are concerned, the medical practice act now makes lawful what otherwise would be a violation of the manslaughter statute.
It is obvious that the two acts are inconsistent insofar as physicians and surgeons are concerned. The provisions of the medical practice act that permit certain abortions to be performed lawfully are repugnant to the provisions of the criminal abortion act.
As before observed, the medical practice act is in itself a complete code. It fully covers the field of license, control, and regulations of physicians and *125surgeons. It provides its own punishments for violation of its terms.
It is well established that repeals by implication are not favored, but when there are two acts on the same subject, if they are repugnant in any of their provisions, “the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first”. Inconsistent provisions incompatible with each other are thus repealed, leaving the former law in full force and effect in all other respects. Miller v. School Dist. No. 1, Multnomah Co., 106 Or 108, 116, 211 P 174; Swensen v. Southern Pac. Co., 89 Or 275, 279, 174 P 158; 22 CJS 79, Criminal Law, §27.
In State v. Preston, 103 Or 631, 637, 206 P 304, we said:
“ * * * Under the principle of law that where there is a conflict between two statutes, both of which would otherwise have equal force and effect, and the provisions of one are particular, special and specific in their directions, and those of the other are general in their terms, the special provisions must prevail over the general provisions
The provisions of the medical practice act are particular, special, and specific in their terms. They cover the entire subject matter with which they deal.
Obviously, the legislature had the power to prescribe the conditions under which a licensed physician and surgeon could lawfully perform an abortion, and to provide the penalty that should be imposed upon such licensee for a violation of those conditions. The penalty imposed under the medical practice act is that of revocation of license. In my opinion, that penalty is exclusive.
*126The legislature was not required to attach criminal responsibility for a violation of the terms of the medical code to make the law a valid one; and yet it did provide a punishment that is highly penal in character-— revocation of license, a penalty of great severity and far-reaching consequence to a professional man.
In 41 Am Jur 172, Physicians and Surgeons, § 44, it is stated:
“The license to practice medicine is a valuable property right, and a statute authorizing revocation of a license to practice medicine must be strictly followed. Such statutes are highly penal and must be construed in the physician’s favor.”
We gave such a strict construction to the provisions of the medical practice act respecting a criminal abortion in Board of Medical Examiners v. Eisen, supra, where we reversed a judgment for revocation on the ground that a criminal abortion had been performed, because the complaint for revocation failed to state all the essential averments necessary to state a crime under the provisions of the manslaughter statute, § 23-408, OCLA. Also see Schramm v. Bank of California, 143 Or 546, 553, 20 P2d 1093, 23 P2d 327; Pacific Title & Trust Co. v. Sargent, 73 Or 485, 490, 144 P 452; Fuller v. Board of Medical Examiners, 14 Cal App2d 734, 59 P2d 171, 175; State Board of Dental Exam. v. Mandell, 198 Miss 49, 21 So2d 405, 409; Schireson v. Shafer et al., 354 Pa 458, 47 A2d 665, 667, 165 ALR 1133; 23 Am Jur 599, Forfeitures and Penalties, § 2.
Beyond all peradventure of doubt, it was the clear intention of the legislature to permit duly licensed physicians and surgeons, as distinguished from other persons, to perform lawfully certain abortions that as to them, as well as to all others, had theretofore *127been condemned by tbe criminal abortion statute. As to such abortions performed by licensed physicians and surgeons, the criminal statute has no application whatever. This in no way affects its application, as written, to other persons. It is my opinion that by the adoption of the 1937 and 1939 amendments to the medical practice act, physicians and surgeons as a class were removed from the purview of the criminal statute to that extent.
The fact that the practice of medicine, unlike many other lawful occupations, requires special knowledge, training, skill, and care, because of the important interests of health and life which are committed to the physician’s care, justifies the legislature in setting them apart in a class by themselves, all in the interests of the public health and safety. Such laws are constitutional. 41 Am Jut 138, Physicians and Surgeons, § 8; 16 CJS 935, Constitutional Law, § 473.
However, the right of a physician and surgeon extends no further than the medical practice act permits. His right is limited to the abortion defined in that law. If a physician and surgeon performs an abortion after the foetus has reached a stage where it has attained the power of sustaining an independent life, as defined in the medical code, he will be guilty of manslaughter, unless such abortion is necessary to preserve the life of the mother, because the medical practice act offers him no protection whatever in such circumstances. In other words, as to such an abortion, he would stand on the same footing as all other persons and be subject to the same criminal responsibility.
Referring to this situation, the minority says:
“Under the medical practice act it is conclusively presumed that the foetus has not acquired power *128of sustaining an independent life earlier than 150 days after gestation. Under the majority opinion, a licensed physician could rely upon that conclusive presumption and be sure that for 150 days the medical practice act would apply, and hence, the manslaughter act would not apply. But must a physician, at his peril, determine the exact date on winch gestation occurred, that is, on which the impregnating intercourse was had, in order to know whether he will be protected by the medical practice act, or may be liable to conviction for manslaughter?”
An answer to that question will not in any way shed light upon the legislative intention. However, in answer to the question, I will say that if the physician and surgeon places his reliance upon the presumption, he is bound to know the date of conception. Both the conclusive presumption and disputable presumption contained in the definition of abortion relate to and are a species of evidence. They constitute indirect evidence. § 2-401, OCLA. Before either may operate, particular facts must be established upon which to base the same. §2-403, OCLA; Hansen v. Oregon-Wash. R. & N. Co., 97 Or 190, 224, 188 P 693,. 191 P 655. If one is to avail himself of the presumptions, the particular fact upon which the same are based must be established. That fact under the abortion definition would be the date of conception.
But we must not overlook the gist of the definition contained in the first clause thereof; to-wit: “Abortion shall mean the expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining independent life.” In a prosecution for manslaughter against a physician and surgeon, a part of the gist of the crime as to him is that the abortion was performed after the foetus had acquired *129the power of sustaining independent life. The indictment must so allege, and the state must prove it. State v. Clements, 15 Or 237, 247, supra. If the evidence discloses that conception occurred within 150 days prior to the abortion, the conclusive presumption operates in favor of the physician and demands his acquittal; if the evidence discloses that conception occurred more than 150 days but less than 240 days prior to the abortion, then the disputable presumption becomes operative and a question of fact arises for determination by the jury whether at the time the abortion was performed the foetus had acquired the power to sustain independent life. This determination would necessarily be based upon all the evidence in the case, including the disputable presumption.
The dilemma facing a physician and surgeon as suggested in the minority’s question is really not a serious one, but it faces him whether he risks revocation of license or conviction of manslaughter.
The purpose of the presumptions contained in the definition of abortion is clear. The legislature simply did not want physicians and surgeons subjected to the hazards that existed at common law where the question of whether an unlawful homicide, as distinguished from an abortion, was committed depended upon whether the foetus had “quickened” in the mother’s womb. The term “quick with child”, as known to the common law, is generally defined as and determined from the first moment movement of the foetus is felt by a pregnant woman. 1 Am Jur 139, Abortion, §18; 1 CJ 312, Abortion, Note 39. It is obvious that the mother only could testify as to that date, and hence conviction rested largely upon the uncorroborated testimony of the woman. The purpose of our definition of abortion is to eliminate en*130tirely the common-law theory of “quickening” and place the matter upon a much more substantial basis; that is, the power of a foetus to sustain an independent life, with certain presumptions to aid in making it effective.
At common law “abortion” was a word used to mean that the life of the foetus or embryo shall be destroyed in the woman’s womb, or that a premature birth thereof be caused before it is capable of sustaining life. 1 CJS 312, Abortion, §1. “Abortion”, as such, was never defined as a crime in this state. We have expressly so held. State v. Farnam, 82 Or 211, 278, 161 P 417, Ann Cas 1918A 318; State v. Dunn, 53 Or 304, 313, 99 P 278, 100 P 258; Belt v. Spaulding and Rockwell, 17 Or 130, 136, 20 P 827.
What is said with reference to duly licensed physicians and surgeons applies also to osteopathic physicians and surgeons. By eh 128, Or Laws 1945,— an act almost identical in words with the 1939 amendment to the medical practice act- — osteopathic physicians and surgeons were placed on the same footing as licensed physicians and surgeons respecting abortions. In 1951, although the legislature further amended the medical practice act by adding new conditions respecting abortions performed by physicians and surgeons (ch 265, Or Laws 1951), it did not make similar changes in the law governing osteopaths. However, in 1953, the legislature amended the 1945 act relating to osteopaths by making it conform to the changes made in the medical practice act in 1951: ch 183, Or Laws 1953.
Frequent reference has been made to acts of the legislative assembly adopted in 1951 and 1953. It might be well to state that the facts in the instant case arose prior to the effective date of the 1951 Act, and *131are governed by the law as it then stood. However, the more or less minor changes made in the medical practice act by the legislation of 1951 would not, even if effective, have any particular bearing upon the issue now before us. However, it is proper for us to refer to this subsequent legislation upon the subject for the purpose of showing that in establishing and maintaining the public policy of this state in the respects under discussion the legislature has been consistent.
I think the clear purpose of the legislature, insofar as abortions performed by duly licensed physicians and surgeons (and osteopathic physicians and surgeons) are concerned, is definitely shown by three of its acts adopted in 1953.
First, by ch 556, Or Laws 1953, the legislature amended the law as to chiropractors. As one of the grounds for revocation of a license, it provided:
“(g) The procuring or aiding or abetting in procuring an abortion, and for the purpose of this Act an abortion shall be deemed to mean the removal from the womb of a woman the product of conception at any time prior to delivery of the child; provided, nothing in this Act shall be construed to authorise any licentiate under title 54, chapter 3, O.G.L.A., to perform an abortion.” (Italics supplied.)
There are two very significant features of this provision: (1) the definition of abortion is decidedly different from that appearing in the medical code, and is such an abortion as is made unlawful by the manslaughter statute, unless performed to preserve the life of the mother; and (2) the express provision that the Act was not to be construed as permitting a chiropractor to perform an abortion of any kind.
*132Second, by eh 555, Or Laws 1953, the legislature amended the law relating to the regulation of the practice of naturopathy and used the identical language employed in the amendment to the chiropractic act, supra.
The intention of the legislature as to chiropractors and naturopaths could not have been expressed more positively. They are not to perform abortions under any circumstances, unless, as permitted by the criminal abortion statute, such abortions are necessary to preserve the life of the mother, and as to such abortions the manslaughter statute permits anyone to act, be he physician and surgeon, chiropractor, naturopath, midwife, nurse, or ditchdigger.
Third, by ch 183, Or Laws 1953, the law regarding osteopathic physicians and surgeons was changed to conform with the 1951 Act relating to physicians and surgeons, in the respects previously noted.
Under the Acts of 1945 and 1953 relating to osteopaths, in the definition of abortion (much different from that appearing in the chiropractic and naturopathic acts), we find no such statement as appears in the last three lines of the definition of “abortion” above quoted from ch 556, Or Laws 1953, nor do we find anything resembling such a statement in any part of the medical practice act or the statutes governing osteopaths.
Relative to abortions, it is manifest that the legislature intentionally made a clear distinction between the different schools of the healing art. It is unnecessary to elucidate the obvious. The conclusions to be derived from the foregoing are inescapable.
Under the theory adopted by the minority, no importance whatever is attached to the drastic changes made in the medical practice act by the Law of 1937 *133and subsequent acts. It gives no effect whatever to the elimination of the term ‘£criminal abortion” from the act, to the adoption of the specific definition of abortion, nor to the definite wording of subd. (b), § 54-931, OCLA. Despite these highly significant changes in the law, the minority would almost completely ignore them, but not entirely, because as to them it does, in effect, say that the sole purpose and purview of the professional code so far as abortions are concerned is to provide procedure whereby physicians and surgeons may be disciplined civilly by members of their own profession.
This theory will not stand the test of logic, nor is it supported by any principle of law.
In the first place, the medical practice act is not simply a measure to permit physicians and surgeons to police their own profession; no more so than the fish and game code is a measure to permit sportsmen to police their own sport, or the .banking code is a measure to permit bankers to police themselves. The Board of Medical Examiners is an agency of the state, just the same as the Fish and Game Commission, the Highway Commission, the State Industrial Accident Commission, and other boards and commissions are agencies of the state. It is the state itself that speaks through its medical board. The powers and duties of the board are minutely spelled out in the law. The act is complete and specific in its regulations and penalties. ’ Yery little is left to the discretion of the board. It is obvious that it is the state itself which polices the medical profession, not the physicians and surgeons. If this were not so, the law undoubtedly would be unconstitutional and void.
Moreover, it is evident that the changes made in the law were in no way necessary to enable the medical *134board to police the physicians and surgeons. Ample provisions therefor were contained in the prior acts. Certainly the elimination of the term “criminal abortion” from the medical practice act and other substantial changes made in the law in no way tended to strengthen the control of the board over licensed physicians nor to tighten the restrictions provided in the act. On the contrary, the restrictions were definitely modified. The minority assigns no sound reason for this modification.
I think even the minority would concede that the legislature has the power to legalize abortions performed by physicians and surgeons to protect the health of its citizens, although their lives be not in danger!
It needs no argument to establish the proposition that the legislature, if it desired, might in every case leave it solely to the medical judgment of the physician whether an abortion should be performed, and that its was not necessary to require consultation with another doctor, nor that it be performed only to preserve health. The legislature, in matters of this nature, possesses broad powers. There is a difference of opinion upon the question of abortions. Some people, upon religious or other grounds, believe that any abortion is wrong, even though necessary to preserve the life of the mother. Others are of the opinion that birth control is necessary and that abortions in many eases are justified to attain that end. Many have other and different views on the subject. However, regardless of one’s own beliefs, it is exclusively the province of the legislature to declare the public policy of the state, not for the court, whose only duty is to interpret and give effect to the legislative will and intent.
*135• The legislature of this state determined that a duly licensed physician and surgeon might perform an abortion as defined, when the health of the mother was in peril because of her pregnant condition, and after consultation with another physician. Under the medical practice act, preserving the health of the mother is the criterion; while under the criminal abortion statute, no abortion can be performed except to preserve the life of the mother. It requires no argument to establish the fact that there is a vast difference between “preserving health” and “preserving life”.
We need give ourselves no concern about a possible abuse by physicians and surgeons of the power vested in them by the provisions of the medical practice act. It must be remembered that they belong to an honorable and ethical profession and are bound by the Hippocratic oath, an important part of which is: “I will give no deadly drug to any, though it be asked of me, nor will I counsel such, and especially I will not aid a woman to procure abortion.”
Although not expressly stated therein, a careful perusal of the opinion written by the minority will reveal that those members of this court consider the criminal abortion act as almost sacrosanct. They seem to feel that it takes precedence over all other law in much the same way that a fundamental law dominates ordinary law. All statutes enacted by the legislature are important, but no one of them is more important than the others. All are pronouncements of our legislature, and none of its pronouncements is written in italics. Courts have no favorites among the numerous enactments of the legislative body. However, a rule which is hoary with age cautions us that if two interpretations of the governing legislation are equally *136available, one of wbicb will view the individual’s conduct as lawful and the other as criminal, the former is the choice that should be made, for unless a court feels morally certain that the legislature intended that the accused should be deemed a felon, it should not adjudge him one. In effect, the legislature has so declared. § 2-223, OCLA, supra.
The state prosecuted this case against defendant upon the theory adopted by the minority that the medical practice act did not authorize physicians and surgeons to perform lawfully an abortion as defined in that law, for the purpose and in the manner therein provided. It urged the same contention on this appeal. On the trial the defendant, by challenging the sufficiency of the indictment, by objections to the testimony, and by exceptions to the court’s instructions to the jury, raised the same questions he has presented in this court. The trial court at the very outset of the trial adopted the state’s theory relative to the law, overruled all of defendant’s objections, and submitted the case to the jury accordingly. The trial court erred.
The record before us reveals that defendant did not testify in his own behalf upon the trial of this case. Therefore, we have no explanation from him regarding the matters testified to by the state’s witnesses. In the absence of a satisfactory explanation, the facts established by the state’s case would have warranted a revocation of defendant’s license to practice medicine, but it did not warrant his prosecution for the crime of manslaughter, because the alleged abortion was performed well within the 150 days after conception, and, in my opinion, was governed exclusively by the provisions of the medical code.
*137The facts in this case as presented by the state’s witnesses disclose a most aggravated situation, but that should not deter us from correctly interpreting and applying the law. We should never attempt to make law to fit the facts of a particular case, no matter how revolting the circumstances of that case may be. Of course, courts have at times done just that, but usually with shocking results. Bad cases have resulted in the maldng of bad laws, and as Edmund Burke said: “Bad laws are the worst sort of tyranny.”