Ballard v. Anderson
| Decision Date | 21 October 1970 |
| Citation | 12 Cal.App.3d 180,90 Cal.Rptr. 468 |
| Parties | Previously published at 12 Cal.App.3d 180, 12 Cal.App.3d 846 12 Cal.App.3d 180, 12 Cal.App.3d 846 Charles BALLARD, M.D., and Ana Maria Carlos, a minor, by Laurel Dollinger, her guardian ad litem, for themselves and all others similarly situated, Petitioners, v. Gail V. ANDERSON, M.D., in his capacity as chairman of the Therapeutic Abortion Committee of Los Angeles County--USC Medical Center, Respondent. Civ. 37223. |
| Court | California Court of Appeals Court of Appeals |
Alan F. Charles, Los Angeles, for petitioners.
John D. Maharg, County Counsel, by Norman J. Gilbert, Asst. County Counsel and Paul G. Seehusen, Deputy County Counsel, for respondent.
This is an original proceeding in mandamus.
The facts are not in dispute. Petitioner Charles Ballard is a licensed physician and a specialist in obstetrics and gynecoloby. (Dr. Ballard). Petitioner Ana Maria Carlos (Carlos) appearing by a guardian ad litem, is a 20-year old unmarried indigent minor who, with one infant child, lives with her mother. Carlos, at the time this petition was heard, was approximately 16 weeks pregnant.
On or about August 14, 1970, Carlos requested a therapeutic abortion at the Los Angeles County--USC Medical Center (Medical Center). She was referred to Dr. Ballard. He examined her and concluded that she was qualified for a therapeutic abortion according to law. The Therapeutic Abortion Committee (Health and Safety Code, § 25951) of Medical Center refused to consider Carlos' application for the sole reason that she was an unmarried unemancipated minor who did not have parental consent.
Civil Code, § 34.6 provides an exception to this settled rule for an emancipated minor who is defined as '* * * 15 years of age or older who is living separate and apart from his parents or legal guardian * * *.' The minor at bench expressly pleads that she is not within that esception.
The Committee informed Dr. Ballard that it was ready to consider the application if it was resubmitted with the required parental consent. Carlos admits she is unable to obtain her mother's consent and asks this Court to order the Therapeutic Abortion Committee of the Medical Center to consider her application without it, contending that provisions of the California Therapeutic Abortion Act, Health and Safety Code, § 25950 et seq. enacted in 1967, when read together with section 34.5 of the Civil Code, enacted in 1953, 1 eliminate the necessity of such consent. We do not agree.
The object of a statute must be considered in its construction. (Wotton v. Bush, 41 Cal.2d 460, 467, 261 P.2d 256.) Section 34.5 was enacted 14 years before the Therapeutic Abortion Law. It does not authorize or permit abortions without parental consent even to preserve the life of the mother. The plain object of Civil Code, section 34.5 is clearly the preservation of the health and life of a pregnant unmarried minor and the health and life of the unborn child. The object of an abortion is to terminate the life of the child. Section 34.5 is an enlightened legislative accommodation to a fait accompli, in the interests of the mother, her unborn child and the community. We do not discern in this section any legislative intent to emancipate minors for the sole reason that they are pregnant.
The fact that the pregnant woman's '* * * right to take life takes precedence over any interest the state may have in the unborn' (People v. Belous, 71 Cal.2d 954, 969, 80 Cal.Rptr. 354, 458 P.2d 194) cannot bar the legislature from enacting humanitarian measures of the most elementary nature in favor of the embryo or foetus which will not be aborted. Petitioners' constitutional argument advanced for the first time in their petition for a rehearing, that the right of the mother to an abortion overrides the unborn child's right to life, not only ignores the limiting provisions of the California Therapeutic Abortion Law, but is also irrelevant to the constitutionally valid, and humanely enlightened purpose of the legislature to encourage the medical care of the unborn. Such is one of the purposes of section 34.5 Other exceptions which eliminate parental consent as a condition to the performance of certain types of medical care have been specifically catalogued and enacted by the legislature. None of these other exceptions emancipate a minor even though they specifically require no parental consent. (Civil Code, §§ 25.5 (blood donations); 25.6 (medical care during and after minor's marriage); 25.7 (medical care while in the armed services); 34.6 (medical care while living away from home); 34.7 (treatment of communicable diseases). The specific scope of these statutes strongly suggests a legislative desire to deal singly and precisely with specific medical problems in respect of which the legislature has weighed the necessity of parental consent as against the proper interest of the minor and the community. This is definitely a function of the legislature and not of the courts.
Section 34.6 which provides in effect that the consent of an emancipated minor '15 years of age or older' is sufficient for all medical service including abortion, was enacted in 1968. If the legislature had intended that pregnancy per se of an unmarried female minor of any age constituted emancipation, it is logical to assume that section 34.6 would have specifically so provided. No one would seriously argue that the legislature by enacting section 34.6 in 1968, a full year after its enactment of the Therapeutic Abortion Act, intended that pregnant minors under 15 could, without consent of a parent, consent to an abortion. Yet this court is being asked to hold that section 34.5 so emancipates pregnant minors, that such minors of any age do not need the consent of a parent to an abortion.
When an attempt was made by the 1970 legislature to extend the rights afforded pregnant minors in section 34.5, nothing was said about abortion. The sole purpose of the proposed amendment was to give to minors an opportunity to prevent pregnancy. The very nature of the proposed 1970 amendment fortifies the legislature's purpose, when in 1953 it enacted section 34.5, to wit: to provide for the health and care of mother and child. 2
Carlos asserts that the legislative trend is to encourage minors who require medical care to seek such care without the 'deterrence' of seeking parental consent. We reject the suggestion, however, that this court expand the field by amending sections 34.5 or 34.6 to say in effect that pregnancy per se in a minor of any age constitutes emancipation. The legislature had the opportunity to so expand the rights of minors when it enacted the Therapeutic Abortion Act in 1967 3, when it enacted section 34.6 (Civil Code) in 1968 and when is attempted to amend section 34.5 in 1970. It did not do so.
Petitioners argue that it should be assumed that when it enacted the Therapeutic Abortion Act, the legislature took no specific steps to limit section 34.5 to 'simple maternity care, as opposed to abortion care' and that '* * * if the legislature had intended to restrict the language of the statute to exclude [abortion] it could certainly have done so in precise terms.'
The ready answer is that if the law-making branches of our government intended to depart from and expand the purpose of section 34.5 was enacted to serve, or to include pregnancy per se as automatic emancipation in section 34.6, they could have done so in precise language. It is clear that the omission so to do is a calculated one.
It is the function of the courts to construe the law. Petitioners ask us to expand it. (People v. Moore, 229 Cal.App.2d 221, 228, 40 Cal.Rptr. 121.) We cannot agree with petitioners' contention that the 'care' of pregnancy under section 34.5 necessarily subsumes its termination. Words should be given their normal, reasonable meaning. (People v. Agnello, 259 Cal.App.2d 785, 791, 66 Cal.Rptr. 571.) To destroy something is the very opposite of 'caring' for it. The addition of a fundamentally opposite concept to section 34.5 of the Civil Code is beyond our power and in any event it would be presumptuous on the part of the Court to legislate on a specific subject which could have been properly included in the Therapeutic Abortion Act and appears to have been deliberately omitted.
The laws of other jurisdictions with statutes similar to the California Therapeutic Abortion Act 4 support our view. North Carolina, 5 Arkansas, 6 New Mexico, 7 Oregon, 8 and Colorado, 9 require parental consent before an abortion may be performed on a minor or, in Colorado and New Mexico, on a woman under 18, as does the legislation proposed for enactment in Washington, 10 Kansas, 11 and Georgia, 12 like California, 13 included no provision in their therapeutic abortion law concerning this problem. The Maryland Code, while ambiguous, appears to permit a minor to consent to a 'termination of pregnancy other than by delivery.' 14
The petition for a writ of mandate is denied, and the order to show cause is discharged.
It is my conclusion that the clear and unambiguous provisions of section 34.5 of the California Civil Code operate to grant to an unmarried, pregnant minor the right, the power and the capacity to give her consent to a therapeutic abortion to be performed in the manner and under the conditions prescribed by the California Therapeutic Abortion Act of 1967 (Health & Saf. Code, § 25950 et seq.), and that the consent of the parent or parents of such an unmarried, pregnant minor is not necessary in order to authorize hospital, medical and surgical care required in the performance of such an abortion.
It seems to me undeniable that the hospital, medical and surgical care necessarily required in the...
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