Ballard v. Anderson

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; WRIGHT; SULLIVAN
Citation484 P.2d 1345,95 Cal.Rptr. 1,4 Cal.3d 873
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.
Decision Date19 May 1971

Page 1

95 Cal.Rptr. 1
4 Cal.3d 873, 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.
Supreme Court of California,
In Bank.
May 19, 1971.

Page 2

[484 P.2d 1346] [4 Cal.3d 875] 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.

MOSK, Justice.

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[4 Cal.3d 876] 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

Page 3

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 [484 P.2d 1347] 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: '(I)f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot. 'Such questions (of general public concern) do not become moot by reason of the fact that the ensuing judgment may no longer be binding upon a party to the action.' (County of Madera v. Gendron (1963) 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 306, 382 P.2d 342, 346.)' (Fn. omitted.) And, in an earlier case, a Court of Appeal applied identical principles with specific reference to a writ of mandate: 'As a general proposition courts will not issue a writ of mandate to enforce an abstract right of no practical benefit to petitioner, or where to issue the writ would be useless, unenforceable or unavailing. (Citation.) [4 Cal.3d 877] However, where the problem presented and the principle involved are of great public interest, the courts have deemed it appropriate to entertain the proceedings rather than to dismiss the same as being moot.' (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

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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 [484 P.2d 1348] 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 [4 Cal.3d 878] 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

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[484 P.2d 1349] Burnand v. Irigoyen (1947) 30 Cal.2d 861, 866, 186 P.2d 417, 420: 'One deals with infants at his peril. (Citation.) The right of the infant to avoid his contracts is one conferred by law for his protection against his own improvidence and the designs of others. The policy of the law is to discourage adults from contracting with an infant and they cannot complain if as a consequence of violating the rule they are injured by the exercise of the right of disaffirmance[4 Cal.3d 879] vested in the infant.' (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 'may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy, and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy.' 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...

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72 practice notes
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...secure order terminating attempted subsequent annexation of some territory by neighboring district). See also, Ballard v. Anderson (1971) 4 Cal.3d 873, 876, 95 Cal.Rptr. 1, 484 P.2d 1345 (public interest precluding dismissal as moot). Note, Code Civ.Proc., § 526a; Serrano v. Priest, supra, ......
  • American Academy of Pediatrics v. Lungren, No. S041459
    • United States
    • United States State Supreme Court (California)
    • April 4, 1996
    ...and vulnerability in making decisions that may have serious consequences for their health and well being. (See Ballard v. Anderson (1971) 4 Cal.3d 873, 878, 95 Cal.Rptr. 1, 484 P.2d 1345 [" 'The right of the infant to avoid his contracts is one conferred by law for his protection again......
  • People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc., No. C000142
    • United States
    • California Court of Appeals
    • July 28, 1988
    ...right to independently consent to the treatment and keep its records from the sight of the parent. "In Ballard v. Anderson, supra, 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345], the Supreme Court interpreted Civil Code section 34.5, and held that the statutory right to reproductive heal......
  • Committee To Defend Reproductive Rights v. Myers, S.F. 24069
    • United States
    • United States State Supreme Court (California)
    • March 20, 1981
    ...involves the woman's fundamental interest in the preservation of her personal health. As this court stated in Ballard v. Anderson (1971) 4 Cal.3d 873, 879, 95 Cal.Rptr. 1, 484 P.2d 1345: "In California, law and medicine recognize that therapeutic abortion is a legitimate medical treatm......
  • Request a trial to view additional results
72 cases
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...secure order terminating attempted subsequent annexation of some territory by neighboring district). See also, Ballard v. Anderson (1971) 4 Cal.3d 873, 876, 95 Cal.Rptr. 1, 484 P.2d 1345 (public interest precluding dismissal as moot). Note, Code Civ.Proc., § 526a; Serrano v. Priest, supra, ......
  • American Academy of Pediatrics v. Lungren, No. S041459
    • United States
    • United States State Supreme Court (California)
    • April 4, 1996
    ...and vulnerability in making decisions that may have serious consequences for their health and well being. (See Ballard v. Anderson (1971) 4 Cal.3d 873, 878, 95 Cal.Rptr. 1, 484 P.2d 1345 [" 'The right of the infant to avoid his contracts is one conferred by law for his protection again......
  • People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc., No. C000142
    • United States
    • California Court of Appeals
    • July 28, 1988
    ...right to independently consent to the treatment and keep its records from the sight of the parent. "In Ballard v. Anderson, supra, 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345], the Supreme Court interpreted Civil Code section 34.5, and held that the statutory right to reproductive heal......
  • Committee To Defend Reproductive Rights v. Myers, S.F. 24069
    • United States
    • United States State Supreme Court (California)
    • March 20, 1981
    ...involves the woman's fundamental interest in the preservation of her personal health. As this court stated in Ballard v. Anderson (1971) 4 Cal.3d 873, 879, 95 Cal.Rptr. 1, 484 P.2d 1345: "In California, law and medicine recognize that therapeutic abortion is a legitimate medical treatm......
  • Request a trial to view additional results

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