Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1982 No. 13 -
Attorney General Ken Eikenberry


The State Board of Health, acting pursuant to RCW 9.02.070, may sanction the performance of second trimester abortions in medical facilities other than an accredited hospital where such medical facilities meet standards prescribed by regulations issued by the Board for the safe and adequate care and treatment of patients.

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                                                                   May 20, 1982

Honorable Mike Padden
St. Rep., 4th District
E. 13021 9th Avenue
Spokane, WA 99216                                                                                                               Cite as:  AGLO 1982 No. 13

Dear Sir:

            By recent letter you requested our opinion on the following question relating to the performance of abortions:

            "Would the liberalization of abortion procedures, namely the authorization of second trimester abortions and non-medical facilities, violate R.C.W. 18.71.240?"

                        We answer this question in the manner set forth below.


            As we understand it, your question arises by reason of certain rule changes which are currently being considered by the State Board of Health.  Under RCW 9.02.070, one of the requirements for the lawful performance of an abortion in this state is that the operation be performed,

            ". . . 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: . . ."

            Moreover, as explained in AGO 1973 No. 7, copy enclosed, this  [[Orig. Op. Page 2]] requirement is, and remains, constitutionally enforceable during the second trimester of pregnancy.  Having said that, however, we are unable to conclude that a regulation allowing the performance of a second trimester abortion in a facility other than an accredited hospital would be legally invalid.  The facility would, of course, nevertheless have to be a "medical facility" which meets the standards prescribed by the State Board of Health under RCW 9.20.040[9.02.040], supra.  But, since the use of such a medical facility is permitted as an expressly stated alternative to an accredited hospital, we believe that the approach now under consideration by the State Board of Health is one which is within the purview of that law.

            We turn, then, to RCW 18.71.240 which you have expressly cited in your letter. That statute (codifying § 1, chapter 328, Laws of 1981) provides that:

            "The right of medical treatment of an infant born alive in the course of an abortion procedure shall be the same as the right of an infant born prematurely of equal gestational age."

            There is, however, a missing link in the argument which would seek to apply RCW 18.71.240 to the instant question.  If, under the law, there existed a general, statutory or constitutional, right on the part of all infants to be born only in an accredited hospital that same right, obviously, would attach to those who are born, alive, in the course of an abortion procedure.  There is, however, no such right‑-whether by reason of the common law, a statute, or either a state or a federal constitutional provision.  And therefore, there is no basis, in turn, for an application of the statute you have cited.

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

Very truly yours,

Attorney General

Deputy Attorney General