I dissent.
The defendant was found guilty by jury trial of a wil violation of the abortion statute as it existed at the time of offense. That he violated the statute is all but conceded in briefs filed in his behalf. Although he testified that he rected the young couple to a doctor, unlicensed in Californ because he believed that if they carried out their threats going to Tijuana to procure an abortion the young womai life would be in danger, he acknowledged upon cro examination that her life would not have been endangered she were not aborted. His assertions that he acted in go faith and out of compassion are tainted somewhat by the e dence which showed that he had referred other women to i same unlicensed physician on a number of occasions and tl he had participated on at least one-half of those occasions the fee paid thé abortionist.
Had the doctor truly believed that the young woman’s 1: was in danger he could have done what was the common pri tice of taking the patient to one of the several hospitals which therapeutic abortions were being performed. To i knowledge there is not one single instance of a decision of t appellate courts of this state in which a doctor or a hospil has been prosecuted for the performance of an abortion whe an independent hospital committee, deemed the abortion to necessary to preserve the woman’s life. The plain fact is, the jury found it to be, that this doctor, whatever his moth possessed the intent to assist in procuring the miscarriage the woman for reasons other than to preserve her life. This the specific intent which the law requires for conviction.
He supplied to the jury the answer an independent hospii committee undoubtedly would have given him had he seen to seek its approval for an abortion — the patient could be the child without endangering her life; therefore, to abort h would violate the law.
The threatened danger to the woman’s life arose only fro the couple’s assertions that they would seek an illegal abo tion by an unlicensed person. To assist them in attaining th *975goal was to flaunt his profession’s own standards and to aid in bringing about a direct violation of the law.
The majority would reverse the conviction by declaring the statute unconstitutional because of asserted uncertainty in the phrase, “necessary to preserve [the woman’s] life.”1 This phrase has been an integral part of the California law against illegal abortions from the time of its enactment in 1872 until the 1967 amendent to the section, and similar language was in the' original statute adopted in 1850.2 Thus for over a hundred years in this state doctors, hospital committees, judges, lawyers and juries have been called upon to give the phrase the common sense interpretation which the words appear to me to suggest.- For this court over a hundred years later to find the language unconstitutionally vague and uncertain is a “negation of experience and common sense.” (United States v. Ragen, 314 U.S. 513, 524 [86 L.Ed. 383, 390, 62 S.Ct. 374].)
Not only was the phrase long used in the California statute, it was also employed at common law (see, e.g., Perkins on. Criminal Law (2d ed.) p. 145; Clark and Marshall, Crimes (6th ed.) pp. 688-689) and is or has been in the abortion statutes of many states (see, e.g., Am.Jur.2d, Abortion, § 9, p. 192; 153 A.L.R. 1218, 1266; Smith, Abortion and the Law (1967) p. 7). Implicit in the decisions of this court, as well as those of countless other courts, is the view that the phrase does not render such a statute invalid (see, e.g., People v. Davis, 43 Cal.2d 661 [276 P.2d 801] ; People v. Gallardo, 41 Cal.2d 57 [257 P.2d 29] ; People v. Powell, 34 Cal.2d 196 [208 P.2d 974]; People v. Wilson, 25 Cal.2d 341 [153 P.2d 720] ; People v. Rcmkin, 10 Cal.2d 198 [74 P.2d 71]). In State v. Moretti 52 N.J. 192 [ 244 A.2d 499, 504] (cert. den. 393 U.S. 952 [21 L.Ed.2d 363, 89 S.Ct. 376]) the court stated that when the phrase “lawful justification,” as used in a statute prohibiting abortions done maliciously or without lawful justification, is confined “to the preservation of the mother’s *976life, ’ ’ tbe statute is not subject to constitutional attack on the ground of vagueness. (See also State v. Elliott, 234 Ore. 522 [383 P.2d 382, 384-385].)
The proper test as to certainty was stated by this court in People v. Howard, 70 Cal.2d 618, 624 [75 Cal.Rptr. 761, 451 P.2d 401], to be: “ ‘A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. As stated in Pacific Coast Hairy v. Police Court, 214 Cal. 668, at page 676 . . . “Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its construction will not justify us in disregarding it. ’ ’ [Citations.] ’ ’ ’
The meaning of the phrase “necessary to preserve [the woman’s] life” was considered in People v. Ballard, 167 Cal.App.2d 803, 814-815 [335 P.2d 204], wherein the court stated, “Surely, the abortion statute (Pen. Code, §274) does not mean by [this phrase] 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.’ (State v. Dunklebarger, 206 Iowa 971 [221 N.W. 592, 596]; see also Rex v. Bourne, 1 K.B. 687 . . .; Commonwealth v. Wheeler, 315 Mass. 294 [53 N.E.2d 4]; 23 So.Cal.L.Rev. 523.) In State v. Powers . . . 155 Wash. 63, 67 [283 P. 439, 440], the court satisfied itself with an interpretation of ‘necessity to save life’ by stating, ‘If the appellant in performing the operation did something which was recognized and approved by those reasonably shilled in his profession practicing in the same community . . . then it cannot be sadd that the operation was not necessary to preserve the life of the patient/” (Italics added.) (See also People v. Abarbanel, 239 Cal.App.2d 31, 34 [48 Cal.Rptr. 336] ; People v. Ballard, 218 Cal.App.2d 295, 307 [32 Cal.Rptr. 233].)
Amici for appellant, 178 deans of medical schools, state that the italicized sentence quoted from People v. Ballard, supra, 167 Cal.App.2d 803, 814-815, is in error because “the medical profession has ‘approved’ abortions in cases [in which the objective was not to preserve the life of the woman and therefore] clearly .outside of Penal Code section 274. Packer & *977Gampell, Therapeutic Abortion: A Problem in Law and Medicine, 11 Stan.L.Rev., 417, 447. ...” However, that sentence nust be understood tornean recognized and approved by such oersons as being required to preserve the life of the patient.
The word “preserve” is defined in the dictionary as “1. To teep or save from injury or destruction; ... to protect; save. !. To keep in existence or intact; ... To save from decompo-ition.” (See Webster’s New Internat. Diet. (3d ed. 1961}.) As used in section 274, the word “preserve” has been egarded as synonomous with “save” (see, e.g., People v. Kutz, 187 Cal.App.2d 431, 436 [9 Cal.Rptr. 626]; People v. Malone, 82 Cal.App.2d 54, 59 [185 P.2d 870]; Stern v. Superior Court, 78 Cal.App.2d 9, 18 [177 P.2d 308]), and to save a ife ordinarily is understood as meaning to save from destruction, i.e. dying — not merely from injury. Thus the precipitation of a psychosis in the absence of a genuine threat of suicide is not a threat to life under section -274. (See Packer and Gampell, Therapeutic Abortion: A Problem in Law and Medicine, 11 Stan.L.Rev. 417, 433, 436.)
That the Legislature used the word “preserve” in the sense of save from destruction also appears from the purpose of the section.. The law historically in various contexts has regarded the unborn’ child as a human being. (See Louisell, Abortion, The Practice of Medicine, and the Due Process of Law, 16 U.C.L.A. L.Rev. 233, 234-244.) Louisell (at p. 244) quotes from Prosser on Torts (3d ed. 1964) that “ [M]edical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regar it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent. . . . All writers who have discussed the problem have joined ... in maintaining that the. unborn child in the path of an automobile is as much a person in the street as the mother. ’ ’ In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421 [201 A.2d 537, 538] (cert. den. 377 U.S. 985 [12 L.Ed.2d 1032, 84 S.Ct. 1894]) it was held that an unborn child of a woman who did not wish blood transfusions because they were contrary to her religious convictions was entitled to the law’s protection and that an order would be made to insure such transfusions to the mother in the event they are necessary in the opinion of the attending physician:
Several statutes show that the California law has been in *978accord in regarding the unborn child as a human being foi various purposes. (See e.g., Pen. Code, §§3706 and 270; Civ. Code, §29.)3 In Scott v. McPheeters, 33 Cal.App.2d 629, 634 [92 P.2d 678, 93 P.2d 562], the court declared: “The respondent asserts that the provisions of section 29 of the Civil Code are based on a fiction of law to the effect that an unborn child is a human being separate and' distinct from its mother. We think that assumption of our statute is not a fiction, but upon the contrary that it is an established and recognized fact by science and by everyone of understanding. ’ ’
It is reasonable to b.elieve that section 274, as it read at the time in question, was not an exception to the law’s attitude respecting the unborn child as a human being-and that it was designed to protect not only the mother’s life but also that of the child. In view of that purpose it would appear that the Legislature intended that the child would be deprived of his right to life only if in the absence of an abortion there was a danger of the mother’s death — not merely of injury to her.
“‘[T]he Constitution does not require impossible standards’; all that is required is’that the language ‘conveys sufficiently definite warning as1 to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U.S. 1, 7-8 [91 L.Ed. 1877, 67 S.Ct. 1538].” (Roth v. United States, 354 U.S. 476, 491 [1 L.Ed.2d 1498, 1510, 77 S.Ct. 1304].) Thephrase in question, when applied according to the standard heretofore stated (namely, whether persons reasonably skilled in their profession practicing in the same community recognized and approved the act as being required to save the patient from dying) clearly gives such warning.
Furthermore, section 274 punishes only those who act with “ ‘ . . . the intent to commit a criminal' abortion, that is, an abortion for a purpose other than to preserve [i.e. save from destruction] the life of the mother.’ ” (People v. Abarbanel. supra, 239 Cal.App.2d 31, 34-35; People v. Ballard, supra, 167 Cal.App.2d 803, 817.) The requirement of such an intent eviscerates much of the majority’s claim that the section is *979impermissibly vague. (See generally Mishkin v. New York, 383 U.S. 502, 507, fn. 5 [16 L.Ed.2d 56, 61, 86 S.Ct. 958] Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342 [96 L.Ed. 367, 372, 72 S.Ct. 329].) A person who' performs an abortion with such an intent has fair warning that his conduct may violate the law even though he may not be certain where the jury will draw the line on the matter of necessity.
The. principal cases relied upon by the majority, in which.' statutes have been declared unconstitutionally vague, do not. support such a finding when applied to the abortion statute. In People v. McCaughan, 49 Cal.2d 409 [317 P.2d 974], the' statute prohibited, among other conduct, “harsh” or “unkind” treatment of a mentally ill. person. These words were held not to have an established meaning either at common law or as a result of adjudication. They were held unconstitutionally vague. On .the other hand, the phrase “neglect of duty” and the word “cruel” were upheld because they did have such well .established meanings; just as do the words utilized in the phrase under attack here.
Lanzetta v. New Jersey, 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618], construed a statute defining “gangster” and making it a crime for anyone to be such a person. The. phrase “consisting of two or more persons” was all that ' purported to define “gang,” and the word “gang” was held so vague and uncertain as to violate the Fourteenth Amendment.
Connolly v. General Constr. Co., 269 U.S. 385, 395 [70 L.Ed. 322, 329, 46 S.Ct. 126], involved a statute requiring a contractor to pay his employees “not less than the current rate of .. . wages in the locality where the work is performed,” and the court held the italicized words unconstitutionally vague. Unlike the statute involved here, the statute in question was a new statute and the court noted that its application “depends not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition. ...”
In contrast to these cases, here the challenged statute has a fixed meaning, frequently applied and impliedly interpreted by the courts in the more than one hundred years of its existence. In addition, the statute requires proof of the specific intent to commit a criminal abortion before a person may be successfully prosecuted under it.
There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear *980before it can be declared unconstitutional. (In re Anderson 69 Cal.2d 613, 628 [73 Cal.Rptr. 21, 447 P.2d 117.)
The majority cite no authority holding that the term “necessary to preserve [the woman’s] life’’ is impermissibly vague, and I agree with the conclusion-as to the constitutionality of the section that is implicit in the multitude of past decisions affirming convictions for illegal abortion, and for murder where death was the result of such an act. 1
I would affirm the judgment.
McComb, J., and Sullivan, J., concurred.Section 274 then 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 (Italics added.)
The 1850 statute (ch. 99, § 45, p. 233) provided that every person who did any of the enumerated acts with a specified intent shall be punishable “Provided, that no physician shall be affected . . . 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 3706 requires that the execution of a death penalty he suspended if the defendant is pregnant and without regard to the stage of pregnancy.
Penal Code section 270 makes punishable a father’s wilful failure.to provide a minor child with necessary items and provides that ‘ ‘ A child conceived but not yet born is to be deemed an existing person in so far as this section is concerned. ’ ’.
Civil Code section 29 provides in part that “A child conceived, but not yet bom, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth . . . . ”