I dissent.
I cannot agree that when it enacted section 34.5 of the Civil Code in 1953 the Legislature intended to confer on girls under the age of 21 the awesome power to extinguish human life.1 I do not believe that this statute which was passed 14 years before the Therapeutic Abortion Act (Act) can be reasonably interpreted as somehow infusing into the later enactment a provision—conspicuously absent from the Act itself—permitting any girl under 21 to obtain a therapeutic abortion without parental consent. With all due respect to my colleagues of the majority, I cannot find any validity in the mechanistic process of interpretation by which they reason that, because an abortion involves a surgical procedure performed on a pregnant female person, it must necessarily constitute “surgical care related to her pregnancy” to which an “unmarried pregnant minor” may herself give valid consent under the provisions of section 34.5. Such reasoning, despite its semantic gloss, conveniently ignores the ineluctable fact that the obvious legislative purpose of section 34.5 is to preserve the unborn life, not to destroy it.
Consequently, it is inconceivable to me that the Legislature, in light of its presumed awareness of the dramatic and significant difference between the type of care envisaged by section 34.5 and the type of “care” prescribed by the Act, would have chosen to express an intended equivalence by silence. On the contrary, I believe the only reasonable conclusion is that the Legislature, by its failure to include in the Act any specific provision relating to consent by minors, intended that the matter should be governed by established principles of infant consent. In sum, in this vital and sensitive area *886of such surpassing human importance one would expect the majority to have satisfied themselves as to a clear legislative declaration devoid of all doubt before concluding that the state had invested in a minor child the power to choose between life and death. The jural principle of reasonable doubt should not be alien to the ancient mandate that “the innocent and the just you shall not put to death.” (Exodus 23:7.)
The language of the majority opinion reflects a studied effort to ignore the distinction to which I have adverted. Perhaps the most striking example is found in the majority’s consideration of the significance of a 1970 amendment to section 34.5 which, if not vetoed by the Governor, would have permitted a minor to consent to the furnishing of medical care relating to the prevention of pregnancy. The majority conclude that this attempted amendment did not demonstrate a legislative recognition that the words “related to her pregnancy” apply only to measures directed toward the safe delivery of a healthy baby. No such recognition is manifested, reason the majority, because preventive care occurs before any pregnancy exists and cannot be “related to [an unmarried pregnant minor’s] pregnancy”—thus rendering separate legislative treatment necessary. Abortion, on the other hand, is clearly related to an existing pregnancy and therefore, the majority assure us, is “surgical care related to . . . pregnancy” within the meaning of section 34.5. The fact that abortion results in the termination of pregnancy is of no moment, we are told. The language used is quite revealing: “Indeed, except for a Caesarean section, there is no other surgery common to pregnancy; and a Caesarean, like an abortion, results in terminating pregnancy.” (Ante, p. 882; italics added.)
Surely only the most manifest distortion of meaning can allow the conclusion that a pregnancy is “terminated” in the same sense by abortion and Caesarean section. It belabors the obvious to point out that the difference is one of kind rather than of degree: A Caesarean section is undertaken in the normal case in order to preserve the mother and give birth to a living child, whereas an abortion is undertaken in order to kill a living fetus. Yet it is this profound distinction which the opinion of the majority would obliterate or ignore. Indeed, it is of this profound distinction that the majority at another point in its opinion can state: “There is no rational basis for discriminatorily singling out therapeutic abortion as the only type of pregnancy-related surgical care which requires parental consent.” (Ante, p. 883.)
Most significantly, the majority attribute to the Legislature their own intransigence by suggesting that, at the time of the Act, the lawmakers perceived between abortion and Caesarean section a difference too inconse*887quential to deserve mention in the Act. I cannot believe that this is so. I think it is abundantly clear that the Legislature painfully perceives the important distinction between abortion and other surgical procedures undertaken in the course of a pregnancy—and that when and if it determines that an unmarried pregnant minor shall be permitted to consent to an abortion without parental concurrence it will say so in the clearest possible language. In the meantime, and in view of the far-reaching significance of the question,2 I believe that this court should refrain from reading between the lines of pre-Act legislation3 in order to fashion its own answer.
I would deny the petition for a peremptory writ of mandate and discharge the alternative writ.
McComb, J., and Burke, J., concurred.
The majority, obviously troubled by the broad impact of their holding, suggest that this statement is at least inaccurate because it “omits recognition” of the fact that no abortion can be performed without medical approval. The point, which apparently continues to elude them, is that under the present law the moving party or “applicant” in any abortion is the pregnant female, and that unless she or another can give valid consent to the operation the question of medical authorization does not arise.
The majority, faced with the inexorable reach of their holding to all minor girls, hasten to soften its impact by observing that, according to a Department of Public Health report covering the first 23 months during which the Act was in effect, only 3 percent of abortions were performed on girls under 15. However, that report (Report to the 1970 Legislature, Third Annual Report on the Implementation of the California Therapeutic Abortion Act, Bureau of Maternal and Child Health, Department of Public Health, January 1970) does not limit itself to empty percentages; it also shows that the under-15 group, which included girls down to age 11, was comprised of 443 young women. The next group in point of age (15 through 19) constituted 27.7 percent of all abortion cases and numbered 4,072.
Although the report gives no breakdown as to the reasons for the therapeutic abortions performed on girls under 20 (see Health & Saf. Code, § 25951, subd. (c)), its data for all age groups as a whole is significant. Out of a total of 16,065 applications presented to hospital committees during the period covered by the report, 92 percent (or 14,717) were ultimately approved and the operation performed, and 90 percent (or 14,493) were based on the reason that the continuance of the pregnancy would gravely impair the mental health of the mother. It is a fair assumption from the report that the same reason of mental health was stated in the preponderance of the cases of young girls under 20.
This last statistic to my mind exposes the precariousness inherent in a young girl’s consent to be given, as the majority would have it, after a tormented decision on a delicate question of life, without the sustaining counsel of her parents. In this most sensitive area, we should now, as we have consistently in the past, apply those principles which “carry out the general theory of the law to protect infants, not only from others, but also from themselves.” (Pollock v. Industrial Acc. Com. (1936) 5 Cal.2d 205, 210-211 [54 P.2d 695].) (Italics added.)
The majority, adverting to Civil Code section 34.6, which was enacted one year after the Act, also concludes that this section “by [its] all-inclusive language, clearly permit[s] certain minors to consent to therapeutic abortions as well as all other types of medical care.” Although the effect of “all-inclusive language” in a post-Act statute may indeed be different from that of such language in a pre-Act statute, the clear inapplicability of section 34.6 to this case renders a present discussion of that matter superfluous.