______________________________________ 

__________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION :
 

: No. 90-926
 

of :
 

:
 

DANIEL E. LUNGREN : JUNE 25, 1991
 

Attorney General :
 

:
 

RONALD M. WEISKOPF :
 

Deputy Attorney General :
 

THE HONORABLE DAVID ROBERTI, MEMBER OF THE SENATE, has
 

requested an opinion on the following question:
 

Under California law is it legal for anyone other than a
 

licensed physician to perform an abortion and if so, under
 

what circumstances?
 

CONCLUSION
 

Under California law only a licensed physician may
 

perform an abortion. 


ANALYSIS
 

Abortion is the deliberate termination of pregnancy by
 

causing a miscarriage of the woman. (Cf. People v. Belous (1969)
 

71 Cal.2d 954, 969, cert. den. (1970) 397 U.S. 915; People v.
 

Wilson (1942) 54 Cal.App.2d 434, 448; People v. Luckett (1937) 23
 

Cal.App.2d 539, 540-541.) Except in cases when it was necessary to
 

save life of the mother, abortion was generally proscribed in
 

California from admission until 1967. (Stats. 1850, ch. 99, p.
 

233, § 45; Stats. 1935, ch. 528, p. 1605, § 1; cf. People v.
 

Barksdale (1972) 8 Cal.3d 320, 326; People v. Belous, supra, 71
 

Cal.2d at 959.) In that year the Legislature enacted the
 

Therapeutic Abortion Act ["the Act"] (Health & Saf. Code, § 25950
 

et seq.) to extend the lawful grounds for which an abortion could
 

be obtained and to delineate the circumstances under which one
 

might be performed. (Stats. 1967, ch. 327, p. 1521, § 1.) The
 

same chapter of legislation also amended the provisions of the
 

Penal Code dealing with abortion to reflect those new parameters.
 

(Stats. 1967, ch. 327, p. 1523, § 3, amending Pen. Code, §§ 272­

276.)
 

1. 90-926
 
 

While major provisions of the Therapeutic Abortion Act
 

have been declared unconstitutional our Supreme Court has said that
 

they are severable from the rest. (Cf. People v. Barksdale, supra,
 8 Cal.3d at 333, 334; see also, People v. Orser (1973) 31
 

Cal.App.3d 528, 536; 65 Ops.Cal.Atty.Gen. 261, 266-267 (1982).) We
 

will conclude that "shorn of its invalid provisions" ( People v.
 

Orser, supra), the remainder in conjunction with section 274 of the
 

Penal Code provides the answer to the question asked, i.e., who may
 

perform an abortion in California. The answer will be that only a
 

licensed physician may do so.
 

Section 274 of the Penal Code currently provides as
 

follows:
 

"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."
 

(Pen. Code, § 274 as amended by Stats. 1967, ch. 327, p.
 

1523, § 3; Stats. 1976, ch. 1139, p. 5109, § 167.)
 

Section 274 is thus "directed toward the abortionist" ( People v.
 

Belous, supra, 71 Cal.2d at 969) and makes it illegal for anyone to
 

perform an abortion except pursuant to the provisions of the
 

Therapeutic Abortion Act, i.e., sections 25950 through 25958 of the
 

Health and Safety Code.1 We must therefore examine that Act to
 

see who can perform an abortion in California. That not only takes
 

us to examine its wording, which is relatively simple for our
 

purposes, but also to determine whether judicial pronouncements
 

rendered subsequent to its enactment have left any of it still
 

enforceable. 


Section 25951 of the Health and Safety Code, here
 

annotated with other salient provisions of the Therapeutic Abortion
 

Act, provides as follows:
 

"A holder of the physician's and surgeon's
 

certificate, as defined in the Business and Professions
 

Code, is authorized to perform an abortion or aid or
 

assist or attempt an abortion, only if each of the
 

following requirements is met:
 

1

We were originally asked who may perform a "surgical"
 

abortion under California law. Section 274 does not differentiate
 

among the ways an abortion might be produced, i.e., on the
 

abortifacient that is employed, and our answer does not depend on
 

that. 


2. 90-926
 
 

"(a) The abortion takes place in a hospital which is
 

accredited by the Joint Commission on Accreditation of
 

Hospitals.
 

"(b) The abortion is approved in advance by a
 

committee of the medical staff of the hospital, which
 

committee is established and maintained in accordance
 

with standards promulgated by the Joint Commission on
 

Accreditation of Hospitals. [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 occurs after the 13 th
 

week. (§ 25953.) Unanimous consent is required where
 

the committee consists of no more than three members.
 

(§ 25951, subd. (b).)]
 

"(c) The Committee of the Medical Staff finds that
 

one or more of the following conditions exist: [¶](1)
 

There is substantial risk that the continuance of the
 

pregnancy would gravely impair the physical or mental
 

health of the mother (cf. § 25954 defining "mental
 

health" 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."];
 

[¶](2) The pregnancy resulted from rape or incest.
 

[Before a committee may approve an application on this
 

ground, it must submit the application to the district
 

attorney for his or her evaluation and determination that
 

probable cause exists to believe that the pregnancy did
 

result from rape or incest (§ 25952, subd. (a); if the
 

D.A. finds that not to have been the case, a procedure
 

for judicial review and determination of the matter is
 

provided (id., subd. (b)).]"
 

[In no event may a termination of pregnancy be approved
 

after the 20th week. (§ 25953, last sent.)]
 

In People v. Barksdale, supra, 8 Cal.3d 320, our Supreme
 

Court held that many of these provisions were unconstitutional and
 

unenforceable: It found that those setting forth the medical
 

criteria upon which abortions could be approved (i.e., § 25951,
 

subds. (b),(c); § 25954) were "so imprecise" as to be
 

"impermissibly vague" and "not sufficiently certain to meet minimal
 

standards of due process." (8 Cal.3d at 328, 332.) Consequently
 

it also found that those establishing medical committees and their
 

procedures (§ 25951, subd.(b); 25953, sent. #1) and those that
 

brought involvement of district attorneys and courts into the
 

abortion equation in cases of rape and incest (§ 25952) were
 

3. 90-926
 
 

invalid because without valid criteria upon which to operate, they
 

had no independent functional purpose. (8 Cal.3d at 338.)2
 

What remained were (i) the provision of the Act requiring
 

abortions to be performed by licensed physicians and surgeons
 

(§ 25952, preamble); (ii) the provision requiring abortions to be
 

performed in hospitals accredited by the Joint Commission on
 

Accreditation of Hospitals (id., subd. (a); and (iii) the provision
 

forbidding abortions after the 20 th week of pregnancy (§ 25953,
 

last sentence). These provisions were held to be distinct from the
 

invalid ones, and severable from them. (8 Cal.3d at 334.) The
 

court found them constitutionally valid. ( Id., at 334-338; see
 

also, 50 Ops.Cal.Atty.Gen. 114, 115 (1967) [requiring JCAH
 

accreditation].) In summary, the court concluded as follows:
 

"We conclude that Penal Code section 274 is valid in
 

its entirety. We perceive no constitutional impediments
 

to ... those portions of section 25951 that require
 

abortions to be performed by holders of physician's and
 

surgeon's certificates in hospitals accredited by the
 

Joint Commission on Accreditation of Hospitals, and to
 

that portion of section 25953 limiting the performance of
 

abortions to the first 20 weeks of pregnancies." (8
 

Cal.3d at 338.)
 

However, exactly two months after Barksdale was decided the United
 

States Supreme Court rendered decisions in Doe v. Bolton (1973) 410
 

U.S. 179 and Roe v. Wade (1973) 410 U.S. 113. As discussed in two
 

prior Opinions of this Office, 65 Ops.Cal.Atty.Gen. 261 (1982) and
 

57 Ops.Cal.Atty.Gen. 58 (1974), those decisions call into question
 

the validity of the last two of the above-described three
 

conditions of the Therapeutic Abortion Act that remained after
 

Barksdale. 


A. The Limitation In Section 25953 That All Abortions
 

Must Be Performed Within The First Twenty Weeks of Pregnancy .
 

Under the Roe analysis, a state's ability to proscribe all
 

abortions is based on its "important and legitimate interest" in
 

protecting the potentiality of human life, i.e., the fetus. But
 

that interest only becomes "compelling" and exercisable at the
 

point in a pregnancy when the fetus has become viable, i.e., when
 

it is "potentially able to live outside the mother's womb, albeit
 

with artificial aid.[]" (Roe v. Wade, supra, 410 U.S. at 160, cf.
 

2

See also, Doe v. Bolton (1973) 410 U.S. 179, 195-198
 

[interposition of a hospital abortion committee is unduly
 

restrictive of the mother's right to receive medical care in
 

accordance with her licensed physician's best judgment], 198-200
 

[required acquiescence by co-practitioners has no rational
 

connection with the patient's needs and unduly infringes on her
 

physician's right to practice]. 


4. 90-926
 
 

id., at 163; but see Webster v. Reproductive Health Serv. (1989)
 

492 U.S. __; 106 L.Ed.2d 410, 436.) The Roe court found that a
 

state may not proscribe abortions before that time; and it may only
 

do so afterwards in cases where an abortion is not "necessary to
 

preserve the life or health of the mother." (Roe v. Wade, supra at
 

164; cf. Id., at 159, 163-165; 65 Ops.Cal.Atty.Gen. supra, at 263.)
 

In addition, a state may not statutorily fix a particular number of
 

weeks (or prescribe another determinant) to say when viability
 

occurs so as to exercise its interest in protecting the fetus by
 

banning all abortions thereafter. (Colautti v. Franklin (1979) 439
 

U.S. 379, 388-389; Planned Parenthood of Missouri v. Danforth
 

(1976) 428 U.S. 52, 63-65; Wolfe v. Schroering (W.D. Ky. 1974) 388
 

F.Supp. 631, 637; Hodgson v. Anderson (D. Minn. 1974) 378 F.Supp.
 

1008, 1016-1017; 65 Ops.Cal.Atty.Gen., supra, at 263.)
 

In 65 Ops.Cal.Atty.Gen. 261, supra, we concluded upon
 

these authorities that the proscription of the last sentence of
 

section 25953 which banned all abortions after the 20 th week of
 

pregnancy was unconstitutional. This was because it prevented
 

abortions which might be necessary to preserve the life or health
 

of the mother after that time, and because it forbade abortions
 

between the 20th week of pregnancy and the time when a fetus would
 

be viable.3 (65 Ops.Cal.Atty.Gen. at 265.) But we "corrected"
 

that unconstitutional overbreadth of the section by "letting its
 

proscription against abortion after the 20th week of pregnancy
 

stand but [limiting it] to those abortions which may
 

constitutionally be banned." (Ibid.) 


B. The Requirement That Abortions Be Performed In JCAH
 

Hospitals. Subdivision (a) of section 25952 of the Therapeutic
 

Abortion Act provides that as a requirement for a physician to
 

perform an abortion, that "[t]he abortion take[] place in a
 

hospital which is accredited by the Joint Commission on
 

Accreditation of Hospitals." 


As stated in Roe, a State's ability to regulate in this
 

manner and prescribe the type of facility in which abortions are to
 

be performed may only take place "to the extent that the regulation
 

reasonably relates to the preservation and protection of maternal
 

health." (410 U.S. at 163, 164; see also, Akron v. Akron Center
 

For Reproductive Health (1983) 462 U.S. 416, 430-431, 433, 434,; 57
 

Ops.Cal.Atty.Gen. 28, 31, supra.) Accordingly, the High Court has
 

held that a State (or a local agency) may not require all second-


3

"Viability is usually placed at about seven months (28 weeks)
 

but may occur earlier, even at 24 weeks.[]" (Roe v. Wade, supra,
 

410 U.S. at 160; see also, Hodgson v. Anderson, supra, 578 F.Supp.
 

at 1016; but see Webster v. Reproductive Health Serv., supra, 106
 

L.Ed.2d at 434 [231⁄2 to 24 weeks gestation is the earliest point in
 

pregnancy where a reasonable possibility of viability exists, but
 

there may be a 4-week error in estimating gestational age].) 


5. 90-926
 
trimester abortions to be performed in general acute-care, full-


service hospitals because that is not medically necessary to
 

protect a woman's health. ( Planned Parenthood Assn. v. Ashcroft
 

(1983) 462 U.S. 476, 481-482; Akron v. Akron Center For
 

Reproductive Health, supra at 431-439; Doe v. Bolton, supra, 410
 

U.S. at 195.) In addition, the United States Supreme Court has
 

cited a lack of medical justification to specifically strike down
 

a JCAH-accreditation requirement. ( Planned Parenthood Assn. v.
 

Ashcroft, supra, 462 U.S. at 481-482; Akron v. Akron Center For
 

Reproductive Health , supra, 462 U.S. at 432-434; Doe v. Bolton,
 

supra, 410 U.S. at 193-195, 201 [first- and second-trimester
 

abortions].) We conclude that the requirement of subdivision (a)
 

of section 25952, that all California abortions be performed in
 

hospitals which have been accredited by the JCAH, would not be
 

sustainable under the Supreme Courts expressed line of reasoning.
 

What then is left of the original Therapeutic Abortion
 

Act? That would be the preamble to section 25951 and the last
 

sentence of section 25953 as construed by our prior Opinion, thus:
 

"A holder of the physician's and surgeon's
 

certificate, as defined in the Business and Professions
 

Code, is authorized to perform an abortion or aid or
 

assist or attempt an abortion, only if each of the
 

following requirements is met:
 

"(a) The abortion takes place in a [JCAH] hospital.
 

"(b) The abortion is approved in advance by a
 

committee of the medical staff of the hospital....
 

"(c) The Committee of the Medical Staff finds...."
 

(§ 25951.)
 

"In no event may a termination of pregnancy be
 

approved after the 20th week [the fetus becomes viable,
 

except to preserve the life or health of the mother]."
 

(§ 25953.)
 

Section 274 of the Penal Code makes it illegal to perform
 

an abortion in California "except as provided in the Therapeutic
 

Abortion Act...." The provisions of that Act state that a
 

physician may perform an abortion only if certain requirements are
 

met. But those requirements are no longer constitutionally valid.
 

Does this mean that the statutory scheme in its entirety must fall,
 

or is there still a valid statement left that only physicians may
 

perform abortions?
 

As mentioned at the outset, in People v. Barksdale the
 

California Supreme Court found the provisions of the Therapeutic
 

Abortion Act were severable, and that shorn of its invalid
 

provisions, it still permitted abortions to be performed pursuant
 

6. 90-926
 
to its remaining terms. (8 Cal.3d at 333-334, 338, 339; see also,
 

People v. Orser, supra, 31 Cal.App.3d at 536.) Fewer valid
 

provisions remain now, but one of them still "require[s] abortions
 

to be performed by holders of physician's and surgeon's
 

certificates." (§ 25951, preamble, as paraphrased in People v.
 

Barksdale, supra at 338.) In Barksdale the Court "perceive[d] no
 

constitutional impediment" to that requirement. (8 Cal.3d at 338.)
 

That continues to correctly state the law in the situation even
 

after Roe v. Wade and its progeny. 


In Connecticut v. Menillo (1975) 423 U.S. 9, the High
 

Court specifically held that Roe did not require the invalidation
 

of the provisions of state abortion statutes that prohibited
 

nonphysicians from performing abortions even though the other
 

provisions of those statutes were no longer valid in light of that
 

case:
 

"In Roe we held that ... the Texas abortion statutes
 

had to fall `as a unit,' [citation], and it is that
 

statement which the Connecticut Supreme Court and courts
 

in some other States have read to require the
 

invalidation of their own statutes even as applied to
 

abortions performed by nonphysicians.[] In context,
 

however, our statement had no such effect. .... [¶]
 

[T]he rationale of our decision supports continued
 

enforceability of criminal abortion statutes against
 

nonphysicians. Roe teaches that a State cannot restrict
 

a decision by a woman, with the advice of her physician,
 

to terminate her pregnancy during the first trimester
 

because neither its interest in maternal health nor its
 

interest in the potential life of the fetus is
 

sufficiently great at that stage. But the insufficiency
 

of the State's interest in maternal health is predicated
 

upon the first trimester abortion's being as safe for the
 

woman as normal childbirth at term, and that predicate
 

holds true only if the abortion is performed by medically
 

competent personnel under conditions insuring maximum
 

safety for the woman. [Citation.] Even during the first
 

trimester of pregnancy, therefore, prosecutions for
 

abortions conducted by nonphysicians infringe upon no
 

realm of personal privacy secured by the Constitution
 

against state interference. And after the first
 

trimester the ever-increasing state interest in maternal
 

health provides additional justification for such
 

prosecutions. [¶] As far as this Court and the Federal
 

Constitution are concerned, Connecticut's statute remains
 

fully effective against performance of abortions by
 

nonphysicians." (423 U.S. at 10-11; emphases added;
 

accord Akron v. Akron Center For Reproductive Health,
 

supra, 462 U.S. at 447.)
 

7. 90-926
 
More recently the Court has said that "on this basis ... it is
 

[still] permissible for the States to impose criminal sanctions on
 

the performance of an abortion by a nonphysician." (Akron v. Akron
 

Center For Reproductive Health, supra, 462 U.S. at 430 fn. 12; see
 

also, Hodgson v. Anderson, supra, 378 F.Supp. at 1016.) 


California has done so in section 274 of the Penal Code,
 

which remains "valid in its entirety" (People v. Barksdale, supra,
 

8 Cal.3d at 338), in conjunction with the preamble to section 25952
 

of the Therapeutic Abortion Law, the validity of which has never
 

been questioned. Upon those statutes we conclude that only a
 

licensed physician may perform an abortion.
 

However, one final matter must be discussed. Suggestion
 

has been made that section 3502 of the Physician Assistant Practice
 

Act (Bus. & Prof. Code, § 3500 et seq.) and the regulations of the
 

Division of Allied Health Professions of the Board of Medical
 

Quality Assurance provide special authority for physician
 

assistants to perform abortions in California. Section 3502
 

provides that "Notwithstanding any other provisions of law, a
 

physician assistant may perform those medical services as set forth
 

by regulations of the [Division of Allied Health Professions] when
 

such services are rendered under the supervision of a licensed
 

physician...." The implementing regulations of the Division
 

essentially permit a physician assistant to perform any procedure,
 

consistent with his or her competency, education, training, and
 

experience, that has been delegated by a supervising physician.
 

(See e.g. 16 Code Cal.Regs. §§ 1399.540, 1399.541(b),(c),
 

1399.542.) 


It is true that the phrase "notwithstanding any other
 

provision of law" usually indicates that the provisions of a
 

statute are to be considered sui generis and take precedence over
 

all other law. (See In re Marriage of Dover (1971) 15 Cal.App.3d
 

675, 678 fn. 3; State of California v. Superior Court (1965) 238
 

Cal.App.2d 691, 695-696.) Nevertheless, we decline to accept the
 

suggestion that the carte blanche of section 3502 coupled with the
 

broad language of the implementing regulations provides authority
 

for physician assistants to perform abortions when delegated to do
 

so by a supervising physician, "notwithstanding" the provisions of
 

section 274 of the Penal Code and those of the Therapeutic Abortion
 

Act.
 

The authority accorded physician assistants by section
 

3502 and the Division's regulations is found in the context of
 

describing the scope of their professional practice. In contrast,
 

the prohibition contained in section 274 of the Penal Code appears
 

in an entirely different setting; it defines criminal activity and
 

represents a long standing policy against the performance of
 

abortions except as is specifically permitted by law. Consistent
 

with that the Therapeutic Abortion Act was carefully crafted after
 

considerable deliberation to permit physicians, and physicians
 

8. 90-926
 
alone, to perform abortions in particularly described circumstances
 

without violating the Penal Code's prohibition. 


Thus we cannot accept the notion that the Legislature
 

meant to gainsay that carefully tailored and highly specific
 

determination when it later adopted the general language of the
 

Physician Assistant Practice Act. Moreover, if the delegation of
 

authority in section 3502 were construed as broadly suggested,
 

substantial question regarding its constitutionality would arise
 

(cf. Kugler v. Yocum (1968) 69 Cal.2d 371, 375-377; CREED v.
 

California Coastal Zone Conservation Com. (1974) 43 Cal.App.3d 306,
 

325; 71 Ops.Cal.Atty.Gen. 296, 299 fn. 2 (1988), and if the
 

Division's regulations were construed without heed to the
 

provisions of the Penal Code, question of their validity would be
 

raised (Agricultural Labor Relations Bd. v. Superior Court (1976)
 

16 Cal.3d 392, 419-420; Morris v. Williams (1967) 67 Cal.2d 733,
 

737).
 

We therefore conclude that a physician assistant may not
 

perform an abortion in California. Under California law, only a
 

licensed physician may do so.
 

* * * * *
 

9. 90-926