People v. Barksdale

• Decision Date: 22 November 1972
• Docket Number: Cr. 15866
• Citation: 105 Cal.Rptr. 1,8 Cal.3d 320
• Court: California Supreme Court
• Parties: , 503 P.2d 257 The PEOPLE, Plaintiff and Appellant, v. Robert W. BARKSDALE, Defendant and Respondent. In Bank

Page 1

105 Cal.Rptr. 1

8 Cal.3d 320, 503 P.2d 257

The PEOPLE, Plaintiff and Appellant, v. Robert W. BARKSDALE, Defendant and Respondent.

Cr. 15866.

Supreme Court of California,

In Bank.

Nov. 22, 1972.

Rehearing Denied Dec. 29, 1972.

Evelle J. Younger, Atty. Gen., Edward P. O'Brien and Charles R. B. Kirk, Deputy Attys. Gen., for plaintiff and appellant.

Musick, Peeler & Garrett, James E. Ludlam, Robert D. Girard, Los Angeles, Hassard, Bonnington, Rogers & Huber, Howard Hassard, Laurence W. Kessenick, San Francisco, and James F. Kemp, Sonoma, as amici curiae on behalf of plaintiff and appellant.

Mintz, Giller, Himmelman & Mintz, Herman W. Mintz and Morton B. Goldstein, Oakland, for defendant and respondent.

A. L. Wirin, Fred Okrand, Los Angeles, Roy Lucas, San Francisco, Barbara Ashley Phillips, Oakland, Pat Kowitz, Joan K. Bradford, San Carlos, Zad Leavy, Levinson, Rowen, Klein & Leavy, Beverly Hills, Norma G. Zarky, Alan F. Charles, Johnson C. Montgomery, Laurence R. Sperber, Los Angeles, Paul N. Halvonik, Charles C. Marson, San Francisco, Terry J. Hatter, Jerome L. Levine, Roblin J. Williamson, Los Angeles, Roland E. Brandel, August B. Rothschild, Jr., and Judith G. Kleinberg, San Francisco, as amici curiae on behalf of defendant and respondent.

Walter R. Trinkaus, J. J. Brandlin, James E. Ryan, Ray E. McAllister, Los Angeles, Andrews, Andrews, Thaxter & Jones, Fresno, John F. Duff, San Francisco, Richard G. Logan, Oakland, Curran, Golden, McDevitt & Martin, San Diego, and William R. Kennedy as amici curiae.

WRIGHT, Chief Justice.

The People seek to prosecute a licensed physician for a violation of Penal Code section 274 (abortion). (Amended Stats.1967, ch. 327, § 3.) At issue is the constitutionality of the 1967 Therapeutic Abortion Act. (Health & Saf.Code, §§ 25950--25954.) ¹

California has traditionally authorized abortions in limited circumstances. Under the terms of the 1967 enactment abortions became more readily available where supported by administrative determinations of the existence of particular circumstances. We are thus confronted not with the question whether the state should or must allow abortions but, rather, whether the current legislation satisfies various constitutional tests against which it must be measured. We hold that it does so only in part and dispose of the cause accordingly.

Defendant's demurrer to the complaint charging a violation of Penal Code section 274 was sustained by the magistrate. The People appealed from the following order of dismissal, and the appellate department of the superior court reversed and certified the cause for further appellate proceedings. (Code Civ.Proc., § 911. See also Cal.Rules of Court, rule 63(a).) For purposes of our review it has been stipulated that defendant is a licensed physician and surgeon, that the charged abortion was performed during the first trimester (13 weeks) of the woman's pregnancy and that it was not performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals, or in any hospital, as required under current legislation (§ 25951, subd. (a)). We assume that no advance approval of the abortion was made by a committee of a hospital medical staff as no reference thereto was contained in the stipulation.

Penal Code section 274, as amended in 1967, provides: '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, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by imprisonment in the state prison not less than two nor more than five years.'

The Therapeutic Abortion Act authorizes licensed physicians and surgeons to perform abortions in accredited hospitals if the abortion is approved in advance by a committee of the hospital's medical staff, which committee is to be established and maintained in accordance with the standards promulgated by the Joint Commission on Accreditation of Hospitals. (§ 25951.) The committee may never consist of fewer than two licensed physicians and surgeons and a committee of three is required 'if the proposed termination of pregnancy will occur after the 13th week'. (§ 25953.) Unanimous consent is required where the committee consists of no more than three members. (§ 25951, subd. (b).) We will consider later a further provision of the statute which states: 'In no event shall the termination be approved (by the committee) after the 20th week of pregnancy.' (§ 25953.)

Prior to approving an application for an abortion the committee must find that '(t)here is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother' (§ 25951, subd. (c)(1)), or that '(t)he pregnancy resulted from rape or incest' (§ 25951, subd. (c)(2)).

The term 'mental health,' which the committee must find will be gravely impaired by continued pregnancy if it approves termination on that ground, is defined as 'mental illness to the extent that the woman is dangerous to herself or to the person or property of others or is in need of supervision or restraint.' (§ 25954.) It thus appears that rather than defining 'mental health' the language purports to define what is deemed to constitute impaired mental health. We will later consider the impact of this language.

Before the committee may approve an application for an abortion for reasons of pregnancy resulting from rape or incest, the application must be submitted to the district attorney for evaluation and a determination of the existence of probable cause to believe that the pregnancy resulted from rape or incest. (Pen.Code, §§ 261, 285.) Procedures for a court review are provided following an adverse determination by the district attorney. (§ 25952.)

Penal Code section 274, in language substantially unchanged between 1850 and 1967, forbade abortions except when necessary to preserve the life of the woman. In 1969, we concluded that the particular language was not susceptible of a clear meaning consistent with legislative intent. (People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194.) The current enactment is the result of almost a decade of legislative effort to satisfy sharply conflicting social, religious and other interests. ² We previously concluded in Belous that, in passing the Therapeutic Abortion Act, the Legislature was primarily concerned, not with the protection of the embryo but with the health of the woman involved. (People v. Belous, supra, 71 Cal.2d 954, 964--966, 971, 80 Cal.Rptr. 354, 458 P.2d 194.) We noted there that the decision to have an abortion raises at least two fundamental rights of the woman: the right to life and the right to choose whether to bear children. (71 Cal.2d at p. 963, 80 Cal.Rptr. 354, 458 P.2d 194.) In the instant case we are urged to declare that women have a constitutional right to abortions and that this right stems from and is protected from governmental intervention by the right to privacy. Under this theory it is urged that the state may regulate abortions only to promote the health of a woman by requiring that an abortion be performed by physicians in a medically approved manner and by proscribing an abortion only in those rare instances where it would constitute a greater hazard to the woman than bearing the pregnancy to term. The People urge, to the contrary, that such a right to privacy, if it exists at all in this context, is offset by a compelling state interest in protecting fetuses and embryos. We hold, for reasons hereinafter considered, that the Therapeutic Abortion Act may not be enforced to prohibit abortions not falling within the conceded limits of proper state regulation, and for that reason we need not resolve those issues raised by the claimed right of privacy.

Defendant contends that various provisions of the Therapeutic Abortion Act are so ambiguous that they cannot be constitutionally enforced. '(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' (Connally v. General Construction Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; see also Cramp v. Board of Public Instruction (1961) 368 U.S. 278, 287, 82 S.Ct. 275, 7 L.Ed.2d 285; Bouie v. City of Columbia (1964) 378 U.S. 347, 351--352, 84 S.Ct. 1697, 12 L.Ed.2d 894; People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974.) Where the requisite certainty is not apparent on the face of the statute the deficiency may be satisfied by 'common understanding and practices' (United States v. Petrillo (1947) 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877; see Roth v. United States (1957) 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498) 'or from any demonstrably established technical or common law meaning of the language in question' (In re Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 369, 350 P.2d 116, 121). Although it is inevitable that there will be 'some matter of degree' involved in most penal statutes (Nash v. United States (1913) 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232), 'stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect' on fundamental rights (Smith v. California (1959) 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; see also Cramp v. Board of Public Instruction, supra, 368 U.S. 278, 287--288, 82 S.Ct. 275, 7 L.Ed.2d 285).

While the basic standard against which statutes must be measured for vagueness is a constant, the vigor with which that standard is applied varies with the determination whether a constitutionally protected right is involved. We have heretofore...