Hastings Law Journal Volume 19 | Issue 1 Article 11 1-1967 The aliC fornia Therapeutic Abortion Act: An Analysis Brian Pendleton Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Brian Pendleton, The California Therapeutic Abortion Act: An Analysis, 19 Hastings L.J. 242 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss1/11 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. THE HASTINGS LAW JOURNAL [Vol 19 THE CALIFORNIA THERAPEUTIC ABORTION ACT: AN ANALYSIS In June 1967, the California Legislature enacted a Therapeutic Abortion Act.' In so doing, California became the third state in the country within the year to significantly revise abortion legislation which had remained unchanged, in many cases, for almost a century.2 The states of Colorado3 and North Carolina 4 preceded California in adopting revised abortion measures. Each of these three states re- lied upon the basic pattern proposed in the Model Penal Code.5 How- ever, there are significant differences between the various enactments, which reflect the deep, underlying religious, social, and legal con- flicts which attend the subject of abortion. The purpose of this note is to examine the California Therapeutic Abortion Act in comparison with the recent Colorado and North Carolina legislation. Desirable modifications will be recommended for the California Act and for consideration by other states contem- plating abortion legislation revision.6 The Need for Reform The necessity for a revision of the California abortion legislation arose for three reasons: first, the legislation did not control, but rather fostered illegal action; second, it did not conform to accepted medical practice, nor social ideology; and third, it was discriminatory in its effect. Prior to its amendment by The Therapeutic Abortion Act, section 274 of the California Penal Code made it a felony to per- form an abortion on a woman for any reason "unless the same is neces- sary to preserve her life.' 7 Essentially the same provisions exist in 40 other states.8 1 CAL. HEALTH & SAFETY CODE §§ 25950-54. 2 L. LADER, ABORTION 85-91 (1966) [hereinafter cited as LADER]. 3 COLO. REV. STAT. ANN. §§ 40-2-50 to -52 (Supp. 1967). 4 N.C. Gr. STAT. § 14-46 (Supp. 1967). r' MODEL PENAL CODE § 230.2 (Proposed Official Draft, 1962). 6 The American Medical Association has noted that about 20 states are considering liberalization of existing abortion laws. The Wall Street Journal, June 19, 1967, at 14, col. 2. 7 Cal. Stats. 1935, ch. 528, § 1, at 1605. 8 J. BATES & E. ZAWADZKI, CRIMnNAL ABORTION 9 (1964) (Table I). In addition to the statutes of California, Colorado, and North Carolina, 7 other states have less stringent requirements. Oregon and Alabama prohibit abor- tions except to preserve the life or health of the mother. ORE. RLV. STAT. §§ 163.060, 677.190(2) (1953); ALA. CODE tit. 14, § 9 (1958). New Mexico pro- hibits abortion except to save the life of the mother or to prevent serious or permanent bodily injury to her. N.M. STAT. ANN. § 40A-53 (1953). Mary- land prohibits abortion except when the physician is "satisfied that the foetus is dead, or that no other method will secure the safety of the mother." MD. ANN. CODE art. 27, § 3 (1957). Massachusetts and Pennsylvania require for violation that the abortion be done "unlawfully." MASS. GEm. LAws ANN.ch. 272, § 19 (1956); PA. STAT. ANN.tit. 18, § 4718 (1963). New Jersey requires that the abortion be done "maliciously or without lawful justification." N.J. STAT. ANN. § 2A: 87-1 (1953). For a collection of all state laws on abortion, see Sands, The Therapeutic Abortion Act: An Answer to the Opposition, U.C.L.A.L. REV. 310-12 (1966). November, 1967] NOTES During the past quarter of a century, there has been a growing recognition that the limitations of abortion laws were forcing many women to seek illegal abortions.9 Thus, a woman who had been raped and was faced with bearing the assailant's child, or a woman who had contracted German measles during early pregnancy and was faced with bearing a seriously deformed baby, was afforded no relief under the existing laws.' 0 The enormity of this problem is reflected in the large number of illegal abortions that are conducted. While it has been noted that accurate statistics are virtually impos- sible to obtain in determining the number of criminal abortions,'1 it has been estimated that 18,000 illegal abortions are induced annually in California. 1 2 Furthermore, illegal abortions are one of the major factors in causing maternal deaths. A relatively recent study has indicated that almost one-third3 of the maternal deaths in California are related to illegal abortions.1 The medical profession has long recognized that there are medi- cally justifiable grounds for inducing abortions in addition to that of saving the woman's life.' 4 It has been reported that licensed physi- cians have conducted abortions on therapeutic grounds where there was a risk to the health of the woman or a strong probability of per- manent damage to the fetus.' 5 And a growing recognition of the psychological trauma attending pregnancy and childbirth has led to therapeutic abortions for mentally unstable women to preserve their mental health.'6 A study of abortion practices of California hospitals revealed that a significant number of the state's major hospitals had established therapeutic abortion committees which had authorized abortions for reasons other than preservation7 of the mother's life, with full knowledge that this action was illegal.1 9 See F. TAussIG, ABORTION SPONTANEOUS AND INDucED (1936). Taussig wrote the first definitive study of the problems of abortion law inequity in 1936. 10 LADER 4-9. 11 PLANNED PARENTHOOD OF AMERICA, INC., ABORTION IN THE UNITED STATES 50 (M. Calderone ed. 1958) [hereinafter cited as CALDERONE]. 12 Hearing on AB 2614 Before California Assembly Interim Comm. on Criminal Procedure, at 74 (Dec. 17, 18, 1962). Is Montgomery, Lewis & Hammersby, Maternal Deaths in California, 1957-1962, 100 CAL. MEDAcNE 412, 415 (1964). There has been a general de- cline in deaths from criminal abortions, probably because of the increased availability of antibiotics. CALDERONE 68. 14 In 1964, it was reported that a study of 420 therapeutic abortions con- ducted in 5 major Los Angeles hospitals and 14 hospitals in various eastern states revealed that 41% were for medical illnesses; 32% were for psychiatric illnesses of the mother; and 27% were given for fetal involvement. Hearing on AB 2310 Before California Assembly Interim Comm. on Criminal Proce- dure, at 34 (Sept. 29, 1964). 15 Kummer & Leavy, Therapeutic Abortion Law Confusion, 195 A.M.A.J. 96, 97 (1966); see MODEL PENAL CODE § 207.11, Comment (Tent. Draft No. 9, 1959). 16 A survey of therapeutic abortions in 61 California hospitals during 1950 disclosed that approximately 25% were performed for reasons of mental disease or nervous disorder. Russell, Therapeutic Abortions in California in 1950, 60 WESTERN J. OF SURGERY, OBsTETRICs & GYNECOLOGY 497 (1952). 17 Packer & Gampbell, Therapeutic Abortion: A Problem in Law and Medicine, 11 STAN. L. REy. 417, 430 (1959). THE HASTINGS LAW JOURNAL [Vol N Tacit acceptance of this medical practice is evidenced by the al- most total lack of enforcement of abortion laws when the abortionist is a reputable physician.18 The courts, too, have recognized the inade- quacy of this legislation and have occasionally attempted to mitigate the force of the law by straining its interpretation to protect physi- cians acting in good faith.19 20 A leading case illustrating this principle is The King v. Bourne, in which an esteemed English surgeon was prosecuted for terminating the pregnancy of a 14-year-old girl who had been forcibly raped. Al- though the law as previously interpreted made an abortion legal only for the purpose of preserving the life of the mother, the court felt that such extreme circumstances deserved a more "reasonable" inter- pretation of the exception: As I have said, I think that those words ought to be construed in a reasonable sense, and if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, in these circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the woman. 2 ' . A similar position was taken by a California appellate court in the case of People v. Ballard.22 The court considered the case of a li- censed physician with a reputable background who was prosecuted for violation of section 274 of the Penal Code. In asserting that there was a presumption favoring the physician's determination that the abortion was necessary to save the life of the woman, the court said: Surely, the abortion statute (Penal Code, § 274) does not mean by the words "unless the same is necessary to preserve her life" that the peril to life be imminent. It ought to be enough that the dan- condition "be potentially present, even though its full develop- gerousmetmight be delayed to a greater or less extent. Nor was it essen- tial that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief."23 The restrictive abortion legislation had its harshest effect on women in the lower socio-economic groups.24 Women able to afford the price of a progressive, private hospital were favored by a more liberal interpretation of the rules governing abortion, while public hospital patients were confronted by a conservative interpretation of the law, and were generally denied abortions.