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Bob Ferguson

AGO 1971 No. 4 -
Attorney General Slade Gorton


The pregnancy of an unmarried female under 18 years of age may be terminated in accordance with chapter 3, Laws of 1970 (Referendum No. 20), if all other conditions set forth therein are met, on the basis of her own consent and that of her parent as her legal guardian, unless some other person has been appointed by the court to serve as her legal guardian.

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                                                                 January 20, 1971


Honorable R. Frank Atwood
State Senator, 42nd District
Legislative Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1971 No. 4

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on a question which we paraphrase as follows:

            May the pregnancy of an unmarried female under eighteen years of age be terminated in accordance with chapter 3, Laws of 1970 (Referendum No. 20), if all other conditions set forth therein are met, on the basis of her own consent and that of her parent as her legal guardian without court appointment, where no other person has been so appointed?

            We answer this question in the affirmative for the reasons set forth in our analysis.


            Chapter 3, Laws of 1970, as enacted by the 1970 legislature, contained a referendum clause requiring it to be submitted to the people for their adoption or rejection at the November 1970 state general election ‑ in accordance with the provisions of Article II, § 1 (Amendment 7) of the Washington Constitution.  At this election, the measure was approved by a  [[Orig. Op. Page 2]] majority of the electors voting thereon, and hence is now in effect as a duly enacted law of this state.  This enactment is commonly known as the abortion act.

            The specific provision of this act which has given rise to your question is set forth in that portion of § 2, which we will underscore in quoting the full text of this section, as follows:

            "A pregnancy of a woman not quick with child and not more than four lunar months after conception may be lawfully terminated under this act only:  (a) with her prior consent and, if married and residing with her husband orunmarried 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 of this 1970 act or any regulation of the state board of health issued under authority of this section shall be guilty of a gross misdemeanor."  (Emphasis supplied.)

            As you know the legislature, in chapter 11.88 RCW, has established procedures for the court appointment of persons to serve as legal guardians of the person and/or estate of "incompetents" ‑ a term which is defined in RCW 11.88.010 as meaning:

            ". . . any person who is either

            "(1) Under the age of majority, as defined in RCW 11.92.010, or

            "(2) Incapable by reason of insanity, mental  [[Orig. Op. Page 3]] illness, imbecility, idiocy, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his property or caring for himself or both."

            Your question assumes, however, that no person has thus been appointed as guardian of the unmarried female child who is seeking to have her pregnancy terminated under the provisions of the abortion act.  The issue thus raised is whether the natural parent of such child, by virtue of that relationship alone and without being appointed "legal guardian" by the court, may give the consent to the termination which is required by the statute.  Our determination of this question, of course, necessitates a basic determination of legislative intent.

            The word "guardian" is defined in Webster's New World Dictionary (College Edition 1966), at p. 643 as meaning, simply

            "a person . . . who watches over, protects, cares for, or defends another person, . . ."

            However, not every person who stands in this relationship to another person is thereby endowed with those legally recognized rights and duties which flow by virtue of the relationship between a ward and one who is legally his or her guardian.

            In the absence of legislation to the contrary, or some divestment of guardianship custody by a court, the natural parent of a minor child is legally the guardian of that child.  See, 39 Am.Jur.2d, Guardian and Ward, §§ 5-10.  However, the difficulty arises out of the fact that in common legal usage, guardians of children are often spoken of as being of two main types ‑ entitled "legal" and "natural."1/   The term "natural guardian" is commonly used to refer to the child's parent without any court appointment, whereas the term "legal guardian" is often used to refer only to a guardian who has  [[Orig. Op. Page 4]] been appointed to this position in a legal proceeding.

            Yet as above suggested, both a parent, as natural guardian, and a court appointed guardian have legally enforceable duties and rights arising out of their relationship to the child, or "ward" for whom they are serving as guardian.  Accord, 39 Am.Jur.2d, Guardian and Ward, supra.  This proposition brings us to the crucial question at issue here: Were the words "legal guardian," as used by the legislature in § 2, chapter 3, Laws of 1970 (Referendum No. 20),supra, used in the inclusive sense, to mean any person who is legally responsible, and therefore the legal guardian, of the child?  Or were the words used in the exclusive sense to mean only a person who has been appointed by a court to serve as guardian for the individual whose pregnancy is to be terminated?

            Where an ambiguity such as this exists in statutory language, resort must be made to the rules of statutory construction in order to resolve it.  These rules have evolved to enable the interpreter of a statute to find and enforce the intent of those who used the questioned words in the enactment.  The fundamental rule of statutory construction is that the intent of the enactors is controlling.  McKenzie v. Mulkilteo Water Dist., 4 Wn.2d 103, 102 P.2d 251 (1940); Shorts v. City of Seattle, 95 Wash. 531, 164 Pac. 239 (1917).  Moreover, a statute, if possible, should be construed to accomplish its manifest purpose, and to avoid unlikely, strained, or absurd consequences which could result from a literal reading of the enactment; in short, the spirit or purpose of legislation should prevail over express but inept language.  Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963), and cases cited therein.

            Here, in addition, because the commission of an illegal abortion (i.e., one not sanctioned by the 1970 abortion act) remains a crime under RCW 9.02.010, the decision as to whether to extend or limit the meaning of the term "legal guardian" should be considered in the light of the well-established rule that criminal statutes are to be strictly construed to limit the class of persons liable to criminal sanctions.  State v. Moser, 41 Wn.2d 29, 246 P.2d 1101 (1952).  Thus, if the term "legal guardian" were to be restricted to mean a court appointed guardian only, the class of persons who would be vulnerable to criminal liability would be extended to  [[Orig. Op. Page 5]] include female minors whose parents are living and caring for them, but who have not "gone through the motions" of having themselves appointed "legal guardians" by a court.

            All the foregoing rules, in our judgment, tend to support a liberal rather than a literal reading of the term "legal guardian" as used in § 2, chapter 3, Laws of 1970 (Referendum 20), supra.  In other words, they tend to support the conclusion that the legislature, in its use of the term "legal guardian" in this particular enactment, intended to include any person who is legally the guardian of an unmarried female under eighteen years of age (thus including the child's parent) ‑ rather than limiting the class of persons who could consent to the termination of a pregnancy of such a child only to those persons who had been appointed "legal guardian" by a court.

            On the other hand, we recognize that a contrary result could be argued on the basis of the rule that where a word or phrase is used which has a technical or legal meaning, and is not otherwise defined, the word or phrase will be assumed to be used in its technical sense.  Northern Pac. R. Co. v. Henneford, 9 Wn.2d 18, 113 P.2d 545 (1941).  Nevertheless, we feel that were the matter to be litigated, the effect of this rule would be more than offset by the foregoing rules.  Furthermore, we believe that a court in such a case would undoubtedly be influenced in its decision by the manner in which this particular law was enacted.

            As noted at the outset of this opinion, this measure was not merely enacted by the legislature; it was, in addition, submitted to and approved by the people of this state in accordance with the referendum provisions of Article II, § 1 (Amendment 7) of our state Constitution.  In their consideration and passage of the measure the voters were acting in their legislative capacity under the Constitution.  They were specifically apprised by the ballot title prepared by the attorney general's office, as required by law, that an abortion could be performed on an unmarried female under eighteen years of age only with her consent and that of her "legal guardian."  Query:  Under this circumstance, would it be reasonable to assume that a significant portion of the voters voting on this measure regarded the term "legal guardian" as not including a natural parent where no other "legal guardian" had been appointed by a court?

            In answer to this question, one may imagine the reaction of  [[Orig. Op. Page 6]] the average father and mother in this state if they were to be told that they were not the legal guardians of their own children.  And of course the parental voter, in this reaction, would be correct.  As they define the words "legal guardian" in the general sense, they are the guardians of their children.

            For all of the foregoing reasons it is our best judgment that the proper construction to be placed upon the phrase "legal guardian" as contained in § 2 of the abortion act is that the term includes not only a person who has been appointed the guardian of a minor child by a court but also includes the natural parent of such a minor child ‑ so long as such parent is still "legally" the guardian of his or her minor child (i.e., no other person has been appointed by the court to serve in this capacity).  On this basis, we answer your question, as paraphrased, in the affirmative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***


1/Within these classifications there are also various subordinate classifications; e.g., testamentary guardians, domestic guardians, guardian ad litem, guardian by appointment, guardian by nature, guardian by statute, guardian for nurture, guardian in chivalry and guardian in socage.  See, Black's Law Dictionary, page 834 (4th ed. 1951).