Ballard v. Anderson
Decision Date | 19 May 1971 |
Citation | 484 P.2d 1345,95 Cal.Rptr. 1,4 Cal.3d 873 |
Court | California Supreme Court |
Parties | , 484 P.2d 1345, 42 A.L.R.3d 1392 Charles BALLARD et al., Petitioners, v. Gail V. ANDERSON, as Chairman, etc. Respondent. L.A. 29834. |
Alan F. Charles, Paul McKaskle and Terry J. Hatter, Los Angeles, for petitioners.
Pelavin & Jensen, Alvin H. Pelavin, Philip K. Jensen, San Francisco, Robert C. Selvidge, Greenbaum, Wolff & Ernest, Harriet F. Pilpel, Nancy F. Wechsler and Ruth Jane Zuckerman, New York City, as amici curiae on behalf of petitioners.
John D. Maharg, County Counsel, Norman J. Gilbert, Asst. County Counsel, and Paul G. Seehusen, Deputy County Counsel, for respondent.
This is an original petition for a writ of mandate to compel the Therapeutic Abortion Committee of Los Angeles County-USC Medical Center to consider on its merits petitioner Carlos' application for a therapeutic abortion without the consent of her parents. We construe for the first time Civil Code, section 34.5 1 to determine whether it emancipates minors for the purpose of obtaining therapeutic abortions without parental consent.
The facts are not in dispute. Petitioner Charles Ballard is a licensed physician specializing in obstetrics and gynecology. Petitioner Ana Maria Carlos, appearing by guardian ad litem, is a 20-year-old, unmarried, indigent minor who lives with her one infant child and her mother in Los Angeles County.
On August 14, 1970, petitioner Carlos requested a therapeutic abortion at the Los Angeles County-USC Medical Center. She was referred to Dr. Ballard, who, after a thorough examination, concluded that she was qualified for the surgery according to law. (Health & Saf. Code, §§ 25950--25954.) The Therapeutic Abortion Committee of the Medical Center refused to consider the merits of the Carlos application for the sole reason that Miss Carlos, an unmarried minor living at home, had not obtained parental consent for the abortion.
Petitioners initiated mandamus proceedings before the Court of Appeal on September 14, 1970, at which time Miss Carlos was approximately 10 weeks pregnant. They contended that Civil Code, section 34.5 permits minors, otherwise qualified, to receive legal therapeutic abortions without the consent of their parents. An order to show cause was issued on September 28, but the order was discharged and the petition for writ of mandate denied on October 21, 1970. We granted a hearing.
Due to the normal passage of time required for petitioning this court, preparation of briefs, presentation of oral argument and completion of the opinions herein, the petitioner Carlos is no longer eligible for assistance under the Therapeutic Abortion Act because the 20-week period of eligibility provided in the act has expired. (Health & Saf. Code, § 25953.) Nature proved to be more fleet than the judicial process. Therefore, we face a threshold question of mootness.
Well established principles regarding the exercise of judicial jurisdiction persuade us that the instant action should not be dismissed because of mootness. As we stated in our recent unanimous decision, In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 37--38, 473 P.2d 737, 741--742: (Fn. omitted.) And, in an earlier case, a Court of Appeal applied identical principles with specific reference to a writ of mandate: (Kirstowsky v. Superior Court (1956) 143 Cal.App.2d 745, 749, 300 P.2d 163, 166; See also Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1; Collier v. Lindley (1928) 203 Cal. 641, 645, 266 P. 526.)
There can be no question that interpretation of Civil Code, section 34.5 with regard to the mecessity of parental consent for therapeutic abortions is a matter of great public concern. The section has never been construed, and literally thousands of young women comparable to this 20-year-old petitioner will be affected by our decision. 2 To eliminate any lingering doubt that the instant case involves a recurring problem, Dr. Ballard appended a declaration to the petition stating that the application for therapeutic abortion of another of his patients, Miss Judy Defufco, was rejected by the Therapeutic Abortion Committee on January 22, 1971, solely for lack of parental consent; Miss Defufco, who was 12 weeks pregnant on January 22, 1971, was also under 21 years of age, indigent, and living at home with her parents. 3
Moreover, Dr. Ballard is a petitioner in this proceeding, and it is clear that the case is not moot as to him, even though any judgment we render has ceased to have practical implications for Miss Carlos. As a physician, Dr. Ballard has standing to raise the interests of his patients, like Judy Defufco, who seek to have him perform therapeutic abortions without parental consent under Civil Code, section 34.5. Dr. Ballard's standing arises from his right to practice medicine consistent with law and his potential liability if he performs an abortion, otherwise justified under the Therapeutic Abortion Act, but without parental consent. (Cf. Griswold v. Connecticut (1965) 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510; Barrows v. Jackson (1953) 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586; People v. Belous (1969) 71 Cal.2d 954, 963 fn. 5, 80 Cal.Rptr. 354, 458 P.2d 194.)
For the foregoing reasons we conclude the proceeding has not become moot.
Turning to the merits, we must determine whether the Therapeutic Abortion Committee of the Los Angeles County-USC Medical Center properly declined to consider petitioner Carlos's application for therapeutic abortion on the sole ground that she had not obtained parental consent. We conclude that a reasonable construction of Civil Code, section 34.5, taking into account its language, legislative history and context, and contemporaneous construction, indicates that minors may obtain therapeutic abortions under law without the necessity of parental consent.
As a general proposition, parental consent is required for the provision of services to minors for the simple reason that minors may disaffirm their own contracts to acquire such services. (See Doyle v. Giuliucci (1965) 62 Cal.2d 606, 610, 43 Cal.Rptr. 697, 401 P.2d 1.) Civil Code, section 34 provides that a minor may enter into contracts 'in the same manner as an adult, subject only to his power of disaffirmance * * *.' Section 35 delineates the scope of the minor's power of disaffirmance and sections 36 and 37 specify certain general exceptions to that power. 4 The policy underlying the rule permitting minors to disaffirm contractual obligations is described in our opinion in Burnand v. Irigoyen (1947) 30 Cal.2d 861, 866, 186 P.2d 417, 420: (See also Doyle v. Giuliucci (1965) supra, 62 Cal.2d 606, 609, 43 Cal.Rptr. 697, 401 P.2d 1; Sparks v. Sparks (1950) 101 Cal.App.2d 129, 137, 225 P.2d 238.)
Civil Code, section 34.5, enacted in 1953, provides an express limitation on the power of minors to disaffirm their contracts for medical services. An unmarried pregnant minor The question before us is whether a therapeutic abortion authorized under the Therapeutic Abortion Act is 'surgical care related to her pregnancy.'
A legal therapeutic abortion under the act may be given only if qualified medical opinion finds (1) a substantial risk that continuance of the pregnancy will impair the mental or physical health of the prospective mother, or (2) that the pregnancy resulted from rape or incest. It is obvious that legal abortion is a surgical procedure, and the Therapeutic Abortion Act establishes that a legal abortion is 'care' of the prospective mother 'related to her pregnancy.' In California, law and medicine recognize that therapeutic abortion is a legitimate medical treatment which may be necessary for the preservation of a pregnant woman's life and health. Had the Legislature intended to exclude legal abortion from the class of surgical care to which the section refers, it would have limited its terminology to 'maternity care' or to 'prenatal, delivery, and postpartum care.'
Respondent contends that the references to 'surgical care' in section 34.5 could not encompass legal abortion because the passage of the section in 1953 preceded by 14 years the passage of the Therapeutic Abortion Act. Respondent...
To continue reading
Request your trial-
Planned Parenthood Affiliates v. Van de Kamp
...his patients' rights to confidential health care and sexual privacy. He too has standing in both areas. (Ballard v. Anderson (1971) 4 Cal.3d 873, 877, 95 Cal.Rptr. 1, 484 P.2d 1345; see Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779.) ......
-
People v. Barksdale
...in California.' [Citation.]' (At p. 965 and fn. 8 at p. 965, 80 Cal.Rptr. at p. 361, 458 P.2d at p. 201.) In Ballard v. Anderson, 4 Cal.3d 873, 95 Cal.Rptr. 1, 484, P.2d 1345, the Supreme Court, although not specifically called upon to pass on the constitutional validity of the Therapeutic ......
-
California Teachers Assn. v. San Diego Community College Dist.
...1049, which implies that legislators' statements are admissible whether or not they are "persuasive", nor Ballard v. Anderson (1971) 4 Cal.3d 873, 881, 95 Cal.Rptr. 1, 484 P.2d 1345 (accord); and see Silver v. Brown (1966) 63 Cal.2d 841, 846, 48 Cal.Rptr. 609, 409 P.2d 689; Carmona v. Divis......
-
In re Corpus
...generally exercise only to decide issues " ‘of broad public interest’ " that are " ‘likely to recur’ " ( Ballard v. Anderson (1971) 4 Cal.3d 873, 876, 95 Cal.Rptr. 1, 484 P.2d 1345 ). This case presents such a question: What standard of review applies to a trial court's denial of bail under......
-
Informed consent: from the ambivalence of Arato to the thunder of Thor.
...incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative); Ballard v. Anderson, 484 P.2d 1345 (Cal. 1971); Hondroulis v. Schuhmacher, 553 So. 2d 398, 412 (La. 1989) (in emergencies, doctors should obtain the consent of relatives if p......
-
Negligence
...procedure is transferred to the patient’s legal guardian or closest available relative. Cobbs, supra, at 244; Ballard v. Anderson (1971) 4 Cal. 3d 873, 883. Otherwise, it is only the patient who can give consent to a medical procedure or treatment, with one exception: In an emergency situat......