Bowland v. Municipal Court

Decision Date06 December 1976
Docket NumberS.F. 23484
CourtCalifornia Supreme Court
Parties, 556 P.2d 1081 Alice Elizabeth BOWLAND et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SANTA CRUZ COUNTY JUDICIAL DISTRICT OF SANTA CRUZ COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent. In Bank

Anne Flower Cumings, Cumings & Jordan and Mary V. O'Hare, San Francisco, for plaintiffs and appellants.

Roger S. Hanson, Santa Ana, Nancy L. Davis, Mary C. Dunlap, San Francisco, Joan Messing Graff, Berkeley, Wendy W. Williams, Alice Daniel, Joseph Remcho, Deborah Hinkel and Ellen Lake, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

No appearance for defendant and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and Jamie Jacobs-May, Deputy Attys. Gen., for real party in interest and respondent.


Plaintiffs challenge the constitutionality of Business and Professions Code section 2141, which prohibits the unlicensed practice of the healing arts. (Unless otherwise indicated, all statutory references are to the Business and Professions Code.) They are charged with violations of section 2141 in that as unlicensed persons they have practiced or held themselves out as practicing midwifery. The plaintiffs, defendants in the criminal proceedings pending against them in the Municipal Court of Santa Cruz County Judicial District, interposed a demurrer to the second amended complaint which was overruled. As plaintiffs they then sought mandate in the Santa Cruz Superior Court, directing the municipal court to sustain their demurrer. After initially issuing its alternative writ, the superior court held a hearing and denied a peremptory writ. Further criminal proceedings in Santa Cruz Municipal Court have been stayed pending final disposition of the appeal.

The charging allegation of the People's complaint is that on or about October 25, 1973, to March 6, 1974, each plaintiff 'did willfully and unlawfully hold herself out as practicing a system or mode of treating the sick or afflicted to wit: such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137 and 2140 of the Business and Professions Code, and treat for a physical condition of a person, to wit: Terry Johnson, by such practices without having at the time of doing so a valid unrevoked certificate as provided in Chapter V, Division 2 of the Business and Professions Code.'

We consider the two applicable statutes, namely sections 2140 and 2141. Section 2140 recites: 'The certificate to practice midwifery authorizes the holder to attend cases of normal childbirth. ( ) As used in this chapter, the practice of midwifery constitutes the furthering or undertaking by any person to assist a woman in normal childbirth. But it does not include the use of any instrument at any childbirth, except such instrument as is necessary in severing the umbilical cord, nor does it include the assisting of childbirth by any artificial, forcible, or mechanical means, nor the performance of any version, nor the removal of adherent placenta, nor the administering, prescribing, advising, or employing, either before or after any childbirth, of any drug, other than a disinfectant or cathartic. ( ) A midwife is not authorized to practice medicine and surgery by the provisions of this chapter.'

Section 2141 provides in full: 'Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor.'

It may be seen that the latter section appears to proscribe two types of medically related activities. It is unlawful, first, for an unlicensed person to practice or hold himself out as practicing any 'system or mode of treating the sick or afflicted'; second, the prohibition extends to any actual diagnosis, treatment, surgery or prescription for a 'mental or physical condition,' whether or not such activities comprise a system or mode of treating the sick or afflicted. Initially, plaintiffs assert that the complaint is so worded as to charge only violations of the first statutory prohibition relating to 'sickness or affliction.' We conclude, however, that the complaint, reasonably read, charges also, as the People contend, that plaintiffs not only held themselves out as practicing a medical system, but engaged in the treatment of a particular physical condition as well, in violation of the second part of section 2141.

The purpose of a criminal pleading is to give to defendant fair and adequate notice of the nature of the offense charged. Although the language of the complaint in question is not a model of precision and clarity, it follows roughly the wording of section 2141. Penal Code section 952 provides that in an accusatory pleading, a statement that the accused has committed some public offense "may be in the words of the enactment describing the offense, . . .." (See Ratner v. Municipal Court (1967) 256 Cal.App.2d 925, 929, 64 Cal.Rptr. 500, 503.) In the light of the relative similarity in language between the pleading and statute, we conclude that the complaint's phrase, 'treat for a physical condition,' gave sufficient warning to plaintiffs that they were being charged under both proscriptions of section 2141. As will appear below, this conclusion also disposes of plaintiffs' contention that the complaint fails to allege with specificity the acts that constitute violations of section 2141.

The preliminary issues resolved, four central questions remain. (1) Does section 2141 prohibit the treatment of, or holding oneself out to treat and assist, a woman during childbirth? (2) Is the section unconstitutionally vague, failing to give adequate notice of the particular conduct it proscribes? (3) Is the section's prohibition overbroad, encompassing constitutionally protected conduct? (4) Does the section, construed to prohibit the assisting of a woman in normal childbirth, violate a woman's right to privacy?

We have concluded that although pregnancy is not a 'sickness or affliction,' it is a 'physical condition' within the contemplation of section 2141. So construed, that section prohibits unlicensed persons from diagnosing, treating, operating upon or prescribing for a woman undergoing normal pregnancy or childbirth, and the reference in the complaint to those of plaintiffs' alleged practices which, under section 2140, are to be performed only by certificated midwives, gives adequate notice of the acts constituting the offense charged. We hold further that section 2141 is not unconstitutionally broad or vague, nor does it violate the prospective mother's right to privacy.

1. Construction of Section 2141

As we have seen, section 2141 prohibits practicing or holding oneself out to practice 'any system or mode of treating the Sick or afflicted in this state . . ..' (Italics added.) Plaintiffs are charged with violating this provision by undertaking to assist a woman in childbirth, thereby engaging in those acts and practices which, under sections 2137 and 2140, are authorized when performed by persons holding medical or midwifery licenses. Section 2137 permits those with a valid certificate to practice surgery and other modes of medical treatment, while section 2140 authorizes those with a valid certificate to practice midwifery, defined as attendance upon Normal childbirth without use of drugs or instruments.

Plaintiffs assert that a woman who is pregnant or undergoing childbirth is neither 'sick' nor 'afflicted,' within the contemplation of the first part of section 2141. We agree that practices authorized by section 2140, which relate only to normal childbirth, cannot be deemed treatment of 'the sick or afflicted.' To the extent that the complaint in question charges only that plaintiffs' practice or midwifery constituted a violation of section 2141 as treatment of the 'sick or afflicted,' it does not state a cause of action.

This conclusion, however, is founded on due process considerations, not on a conviction that the phrase 'sick or afflicted' must logically and necessarily exclude 'normal' physiological conditions. Plaintiffs cite numerous decisions characterizing childbirth as a normal biological function of women rather than a disease or sickness. (See, e.g., Cleveland Board of Education v. LaFleur (1974) 414 U.S. 632, 652, 94 S.Ct. 791, 39 L.Ed.2d 52, conc. opn. Powell, J.; Cerra v. East Stroudsburg Area School District (Pa. 1973) 450 Pa. 207, 299 A.2d 277; Banti v. State (1956) 163 Tex.Cr.R. 89, 289 S.W.2d 244, 247; Crees v. California State Board of Medical Examiners (1963) 213 Cal.App.2d 195, 212, fn. 8, 28 Cal.Rptr. 621.) But these references are not particularly helpful in construing section 2141. As stated in Crees, supra, quoting from Commonwealth v. Porn (Mass.1907) 196 Mass. 326, 82 N.E. 31: "Although childbirth is not a disease, but a normal function of women, yet the practice of medicine does not appertain exclusively to disease, and obstetrics as a matter of common language has long been treated as a highly important branch of the science of medicine." (213 Cal.App.2d p. 212, fn. 8, 28 Cal.Rptr. p. 631.) The issue, then, appears to be not whether pregnancy is a normal or an abnormal condition, but whether as a normal condition it may still be considered a sickness or...

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