AGO 1973 No. 7 - Feb 14 1973
ABORTIONS ‑- RESIDENCY ‑- CONSENT ‑- TIME PERIOD ‑- LICENSED PHYSICIAN ‑- APPROVED HOSPITAL ‑- IMPACT OF UNITED STATES SUPREME COURT DECISIONS ON ENFORCEABILITY OF WASHINGTON ABORTION LAWS
Under recent United States Supreme Court decisions on the constitutionality of state abortion laws:
(1) The requirement of RCW 9.02.070 that abortions, in order to be noncriminal, must be performed only during the first four lunar months of pregnancy is no longer enforceable; a state may no longer prohibit all abortions except those necessary to preserve the life of the woman or that of the child during any of the first six months of pregnancy.
(2) The requirement of RCW 9.02.070 that abortions, in order to be noncriminal, must be performed only upon women who have resided within the state of Washington for at least ninety days, is no longer enforceable.
(3) A state may continue to require all abortions to be performed by licensed physicians only.
(4) The requirement of RCW 9.02.070 that abortions be performed only at hospitals approved by the Joint Commission on Accreditation of Hospitals or at a medical facility approved for that purpose by the state board of health, is no longer enforceable as to abortions performed during the first three months of pregnancy.
(5) The existing requirement of JCAH approval of a hospital in which abortions are performed is not enforceable even as to abortions performed during the second three months of pregnancy, but the requirement of RCW 9.02.070 that abortions be performed only in medical facilities approved by the state board of health for that purpose is enforceable with respect to abortions performed during this three month period.
(6) The requirement of RCW 9.02.070 that an abortion may be performed upon a woman only ". . . with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively, . . ." having not been passed upon in these recent United [[Orig. Op. Page 2]]States Supreme Court decisions remains presumptively constitutional and enforceable.
(7) During the final three months of pregnancy RCW 9.02.010 remains completely valid and enforceable so as to prohibit any abortions during this period unless necessary to preserve the life of the mother or the child whereof she is pregnant.
(8) The provisions of RCW 9.02.080, which state that no hospital, physician or other person shall be required against its or their objections to participate in a termination of pregnancy, remain constitutionally valid.
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February l4, l973
Honorable Alan Bluechel
State Representative, 45th District
Olympia, Washington 98504
Cite as: AGO 1973 No. 7
By letter previously acknowledged you have asked for our opinion with respect to the impact which recent United States Supreme Court decisions regarding the constitutionality of state laws regulating the performance of abortions will have upon the future enforceability of the existing statutes of this state dealing with this subject.
We respond to this question in the manner set forth in the following analysis.
I.Resume of Supreme Court decisions:
On January 22, l973, the United States Supreme Court issued its decisions in two cases involving the constitutionality of statutes in the states of Texas and Georgia which either prohibited abortions in all cases ". . . except for the purpose of saving the life of the mother . . ."1/ or otherwise restricted and regulated the circumstances in which [[Orig. Op. Page 3]] the pregnancy of a woman may be terminated.2/
Basing its decision upon a "right of privacy" derived from the 14th Amendment's concept of personal liberty3/ rather than upon the 9th Amendment's reservation of rights to the people,4/ as had the lower court, the supreme court nevertheless affirmed, by a seven-two majority,5/ a ruling by a federal district court in Texas that the prohibitions contained in that state's statutes were unconstitutional. Roe v. Wade, No. 70-18, reported in 41 LW at p. 4213 [[41 U.S.L.W. 4213]]. By way of a summation at the conclusion of its lengthy opinion6/ in which not only the legal aspects of abortions were considered but the historical, philosophical, religious and sociological aspects of this [[Orig. Op. Page 4]] subject as well, the court set forth the essence of its decision in this case as follows:
"1. A state criminal abortion statute of the current Texas type, that excepts from criminality only alifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
"(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
"(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
"(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
"2. The State may define the term 'physician,' as it has been employed in the preceding numbered paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined."
Following which, the court then went on to say:
"This holding, we feel, is consistent with the relative weights of the respective [[Orig. Op. Page 5]] interests involved, with the lessons and example of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."
Then, in the companion case ofDoe v. Bolton, No. 70-40 (41 LW 4233) [[41 U.S.L.W. 4233]], the court applied these principles to a Georgia abortion statute which, although somewhat more permissive than was the Texas statute involved inWade,7/ nevertheless included a number of procedural requirements. Included among these were two in particular which compare to requirements contained in our own Washington statutes, to which we shall turn in a moment; namely, (1) that the woman upon whom the abortion is performed be a resident of Georgia, and (2) that the abortion be performed only in
". . . a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; . . ."8/
[[Orig. Op. Page 6]]
With respect to the residency requirement of this statute, the supreme court opined as follows:
"The appellants attack the residency requirement of the Georgia law, §§ 26-1202 (b) (1) and (b) (2), as violative of the right to travel stressed inShapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient.
"Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state‑supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430 (1870); Blake v. McClung, 172 U.S. 239, 248-256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. SeeToomer v. Witsell, 334 U.S. 385, 396-397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve."
As for Georgia's requirement of both state licensure and JCAH accreditation in order to qualify a hospital for the performance of abortions, the court first noted that
". . . In Georgia there is no restriction of the performance of nonabortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon are met. . . ."
Because of this and other related factors it then held
[[Orig. Op. Page 7]]
". . . that the JCAH accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not 'based on differences that are reasonably related to the purposes of the Act in which it is found.' Morey v. Doud, 354 U.S. 457, 465 (1957)."
Then, clarifying the scope of this holding the court went on to say:
"This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and variousamici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to [[Orig. Op. Page 8]] exclude the first trimester of pregnancy, see Roe v. Wade, ante, p. , is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital rather than in some other facility." (Emphasis supplied.)
In addition, certain other procedural requirements of the Georgia statute, including a requirement of concurrence as to the necessity for an abortion by two other licensed physicians together with prior approval by three members of the hospital staff, were also held invalid in this case (at least during the first trimester). For present purposes we need not, however, concern ourselves with these additional requirements ‑ for (as will be seen momentarily) nothing comparable is contained in our existing statutes. On the other hand, wedo note at this point that in neither the Texas nor the Georgia cases did the supreme court have occasion to consider and pass upon the constitutional validity of a requirement such as is contained in our RCW 9.02.070 (quoted in full below) that an abortion may only be performed upon a woman
". . . with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively, . . ."
II.Washington statutes regulating abortions:
We next turn to a resume of our own present state statutes regulating the performance of abortions. Since the enactment of chapter 3, Laws of 1970, Ex. Sess., (pursuant to a referendum election under Article II, § 1 (Amendment 7) of our state Constitution) this state has permitted abortions during the first four months of a woman's pregnancy in accordance with the following statutory provisions:
"Neither the termination by a physician licensed under chapters 18.71 or 18.57 RCW of the pregnancy of a woman not quick with [[Orig. Op. Page 9]] child nor the prescribing, supplying or administering of any medicine, drug or substance to or the use of any instrument or other means on, such woman by a physician so licensed, nor the taking of any medicine, drug or substance or the use or submittal to the use of any instrument or other means by such a woman when following the directions of a physician so licensed, with the intent to terminate such pregnancy, shall be deemed unlawful acts within the meaning of this act."
"A pregnancy of a woman not quick with child and not more than four lunar months after conception may be lawfully terminated under RCW 9.02.060 through 9.02.090 only: (a) with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively, (b) if the woman has resided in this state for at least ninety days prior to the date of termination, and (c) in a hospital accredited by the Joint Commission on Accreditation of Hospitals or at a medical facility approved for that purpose by the state board of health, which facility meets standards prescribed by regulations to be issued by the state board of health for the safe and adequate care and treatment of patients: Provided, That if a physician determines that termination is immediately necessary to meet the medical emergency the pregnancy may be terminated elsewhere. Any physician who violates this section or any regulation of the state board of health issued under authority of this section shall be guilty of a gross misdemeanor."
During the remaining five months of pregnancy, however, the governing Washington statute is quite like that of Texas, supra. As set forth in RCW 9.02.010, codifying § 196, chapter 249, Laws of 1909, this statute provides that:
[[Orig. Op. Page 10]]
"Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall‑-
"(1) Prescribe, supply, or administer to a woman, whether pregnant or not, or advise or cause her to take any medicine, drug or substance; or,
"(2) Use, or cause to be used, any instrument or other means;
"Shall be guilty of abortion, and punished by imprisonment in the state penitentiary for not more than five years, or in the county jail for not more than one year."
Thus, during the first four months of pregnancy an abortion may now be performed in Washington ‑
(a) by a licensed physician;
(b) in an approved medical facility;
(c) upon a woman who has resided in this state for at least ninety days;
(d) with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively.
Thereafter, however, this operation cannot be performed upon any pregnant woman, under any circumstances, unless ". . . necessary to preserve her life." And finally, regardless of when during the period of pregnancy a woman seeks to have an abortion performed, the following provisions of RCW 9.02.080 (codifying § 3, chapter 3, Laws of 1970, Ex. Sess.) apply:
"No hospital, physician, nurse, hospital employee nor any other person shall be under any duty, by law or contract, nor shall such hospital or person in any [[Orig. Op. Page 11]] circumstances be required, to participate in a termination of pregnancy if such hospital or person objects to such termination. No such person shall be discriminated against in employment or professional privileges because he so objects."
III.Impact of Supreme Court decisions on Washington statutes:
We now come to the essence of your question: To what extent will the supreme court's decisions in Roe v. Wade and Doe v. Bolton, supra, affect the future enforceability of our existing statutes dealing with abortions.
Purely from a standpoint of form, of course, all of the provisions of these statutes will remain in our criminal code in the manner in which they now appear until they are either amended or repealed through the legislative process. Moreover, to the extent that they are not in clear conflict with the supreme court's rulings, these statutes remain entitled to an over-all presumption of constitutionality until held to be otherwise by a court of competent jurisdiction ‑ both as a matter of office policy9/ and as a matter of law. In the case of such conflicts asdo exist between them and the supreme court's decisions, however, future enforcement will unquestionably be effectively precluded by these decisions for the obvious reason that in any prosecution brought to enforce a requirement of our statutes which conflicts with the supreme court's rulings,supra, the person or persons charged with a violation of these statutes will be able to invoke the federal Constitution, as now interpreted by the supreme court, as a defense. Accord, so much of Article VI of the United States Constitution as provides that:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."
[[Orig. Op. Page 12]]
We will, therefore, couch our ensuing conclusions in this light ‑ i.e., enforceability rather than constitutionality, perse. In addition, for ease of understanding, we will divide our discussion of the impact of the supreme court's decisions on our statutes into the same three time periods as were utilized by the court in Roe v. Wade,supra;10/ and finally, we will key our conclusions for the critical first and second trimesters to each of the four above listed specifications of RCW 9.02.060 and 9.02.070 which these two sections of our permissive 1970 act now require to be met in order for an abortion performed during the first four months of pregnancy to be legal in this state.
A.Abortions committed during the first three months of pregnancy:
(1) Without question, a state may still require, as does our 1970 law, that all abortions be performed only by a licensed physician ‑ even during this initial trimester. Accord,Roe v. Wade, supra.
(2) However, the requirement of RCW 9.02.070 that abortions be performed only at hospitals approved by the Joint Commission on Accreditation of Hospitals or at a medical facility approved for that purpose by the state board of health, appears to us no longer enforceable as to abortions performed during the first three months of pregnancy (accord,Doe v. Bolton, supra) ‑ particularly where no similar requirement has been enacted with respect to other similarly minor surgical procedures.11/
[[Orig. Op. Page 13]]
(3) Thirdly, it also seems readily apparent that this state can no longer enforce the ninety-day residential requirement set forth in RCW 9.02.070,supra, because of the specific holding on this point in Doe v. Bolton,supra.
(4) Finally, however, because no ruling to the contrary is contained in either of the two pertinent supreme court decisions, we believe that the various "consent" requirements of this 1970 statute remain, presumptively, constitutional and enforceable.
B.Abortions performed during second three months of pregnancy:
While the first month of this second trimester also falls under our 1970 abortion law (RCW 9.02.060, et seq., supra), the second and third months of this trimester, together with the final three months of normal pregnancy, are regulated, instead, by the preexisting provisions of RCW 9.02.010, supra.
All that we have said above with regard to the "licensed physician," "residency" and the "consent" issues is, we think, equally applicable during this entire period. A state such as ours may no longer prohibit all abortions except those necessary to preserve the life of the mother or child during any portion of this second trimester, and it may not require residency on the part of the woman as a prerequisite to the performance of an abortion. It may, however, continue to require the operation to be performed by a licensed physician. Likewise, it also may still require the woman's consent and, if married and residing with her husband, that of her husband; and, similarly, it still may require parental consent in the case of unmarried females under the age of eighteen years, as does RCW 9.02.070,supra, in the absence of a specific court ruling to the contrary.12/
[[Orig. Op. Page 14]]
In addition, we think that during this second trimester of pregnancy (unlike the first) our state may,for the protection of the mother, continue to require all abortions to be performed at ". . . a medical facility approved for that purpose by the state board of health . . ." Any such requirement of approval, however, must be relevant to the underlying constitutional justification for state regulation during this period ‑ that is, the protection of the health of the mother. For this reason, in accordance with the ruling in Bolton, we think that one of our existing requirements, that of accreditation by the Joint Commission on Accreditation of Hospitals, must be viewed as no longer enforceable.
C.Abortions during final three months of pregnancy:
During this final trimester of a woman's pregnancy, we believe that RCW 9.02.010,supra, remains completely valid and enforceable. No abortions may be performed during these three months of pregnancy by any person in any facility even with the consent of the woman
". . . unless the same is necessary to preserve her [the woman's] life or that of the child whereof she is pregnant, . . ."
D.Participation by hospital or doctor:
Finally, lest there be any misunderstanding as to the impact of the supreme court's decisions upon this related question, we note in conclusion that we have found nothing in either case which causes us to hold any doubt as to the continuing constitutionality of the third and last section of chapter 3, Laws of 1970, Ex. Sess.,supra, now codified as RCW 9.02.080 and here repeated for ease of reference as follows:
"No hospital, physician, nurse, hospital employee nor any other person shall be under any duty, by law or contract, nor shall such hospital or person in any circumstances be required, to participate in a termination of pregnancy if such hospital or person objects to such termination. No such person shall be discriminated against in employment or professional privileges because he so objects."
[[Orig. Op. Page 15]]
As with any case invoking essentially 14th Amendment rights, the right which the supreme court has here spelled out is that of a woman to be free from certain state imposed restrictions upon her decision to have an abortion; it is not, however, a right to compel either an unwilling hospital or other medical facility, or any unwilling physicians or other medical personnel, to perform this surgical procedure.
Although as above explained this is purely a matter of form rather than substance, it is readily to be seen that in view of the conclusions we have reached in this opinion, some modifications in our already relatively permissive abortion laws will be necessary in order to bring them into complete conformity with the federal Constitution as interpreted and applied by the supreme court in the two cases herein discussed. Accordingly, should you desire us to do so, we would be happy to assist you in the preparation of an amendatory bill to accomplish what is required in this regard. Essentially, such a bill would involve, first, an extension of the period during which abortions may lawfully be performed from the fourth to the sixth month of pregnancy; secondly, an elimination of the ninety-day durational residence requirement of RCW 9.02.070, supra; and, finally, a limitation of the present "approved medical facility" requirement to abortions performed during the second trimester, together with a removal of the present requirement of JCAH approval.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Texas Penal Code, Articles 1191-94 and 96.
2/Georgia Criminal Code, § 26-1202, under which all abortions were prohibited unless
". . . 'performed by a physician duly licensed' in Georgia when, 'based upon his best clinical judgment . . . an abortion is necessary because
"'(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health, or
"'(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect, or
"'(3) The pregnancy resulted from forcible or statutory rape.'"
3/". . . nor shall any state deprive any person of life, liberty, or property, without due process of law; . . ." United States Constitution, Amendment XIV.
4/"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." United States Constitution, Amendment IX.
5/Justices White and Rehnquist, dissenting.
6/Written by Justice Blackmun.
7/See footnote 2, supra.
8/Georgia Criminal Code, § 26-1202 (b).
9/See, AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]], and other prior opinions cited therein.
10/It will, of course, be seen from a comparison of the first two segments of this opinion that while our statutes separately cover two periods ‑ i.e., the first four months of pregnancy and the remaining five months ‑ the supreme court has, instead, divided a woman's period of pregnancy into three approximately equal three‑month periods of time.
11/We would, however, trust that through continuing to require all abortions to be performed by licensed physicians, the state could nevertheless reasonably be assured that these operations would be performed in sufficiently suitable medical facilities.
12/In AGO 1971 No. 4 [[to R. Frank Atwood, State Senator on January 20, 1971]]we concluded, notably, that the term "legal guardian" as used in this statute includes the natural parent of a child so long as no other person has been appointed guardian by the courts.