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next election if they sent women to prison because they had been aborted for the indications included in this bill.

Our proposed change is most conservative and most reasonable and, in fact, would simply bring the law into conformity with the substantial body of medical judgment and public opinion which supports termination of pregnancies in cases which are illegal under current law.

When this subject was first before the Legislature four yea ago we had little publicly-stated support, but I think we now have demonstrated that the people of California want a change.

We now have widespread public support for this bill, and a list of organizations who have endorsed this legislation is before you.

It includes the California Medical Association; the State Board of Public Health; the State Department of Public Health ; many other physicians' organizations; the State Bar Convention; the California Church Council and many other religious groups, 1,100 individual clergymen throughout the State; the Grand Juries of Orange, Los Angeles, Sacramento, San Diego, Alameda, and four other counties; the California Federation of Women's Clubs; the PTA; the State Junior Chamber of Commerce; the Association of University Women, and some of the most respected newspapers and television stations in this State.

You have before you also the results of the California (field) poll of July of last year, which indicates that of all persons having an opinion on the subject, 72.2 percent favor liberalization of our abortion laws at least to the extent provided in this bill. By religious preference, 73.6 percent of Protestants favored liberalization, 58.6 percent of Catholics, and 88 percent of those with other religions, or with no religious preference.

I cite these figures not because I believe that might makes right, but because we are dealing with a provision of the Penal Code which prohibits, and makes a felony, of conduct which the great majority of Californians feel should not be treated as felonious behavior.

I think this is relevant because the primary use of criminal law is to reflect the judgment of a society as to the morality of criminality of certain acts.

I respectfully suggest that virtually none of us believes that a woman or her physician should be sent to prison if she is aborted for the reasons set forth in this bill.

I suggest we would all be outraged if women were sent to prison for having abortions to terminate pregnancies caused by criminal attacks upon their persons.

I think we should ask ourselves why we do not insist upon the enforcement of our present law.

I think we should ask ourselves why the physicians in San Francisco who are presently before the Board of Medical Examiners on administrative proceedings for unprofessional conduct, have not been taken to the criminal courts by the district attorney when it is clear beyond doubt that they have broken the law and have committed felonies by performing abortions for reasons other than the sole justification now found in our Penal Code.

The answer for many of us is that all we are doing under our present law is closing our eyes to these horrible and tragic personal problems, turning these women away from competent medical practitioners, and forcing them into the often unskilled hands of the criminal underworld.

This bill is necessary not to permit additional abortions, but to allow some abortions presently performed to be done safely and without humiliation in those few areas where the great majority of people believe that abortion should not be a crime.

Opponents of the bill contend that we have no right to destroy a life; they contend that abortion is the equivalent of murder. I think these contentions deserve consideration and I want to consider them briefly at this point.

The great majority of people do not consider a fetus equivalent to a living human being. The great majority of people reject the contention that, from the first moment of union of sperm and ovum there is a life that has equal weight with the living mother.

Theologians have debated this very issue for many hundreds of years at least, and still do not agree; in fact, the great majority support this bill.

This problem is best expressed, perhaps, by the difference in the degree of concern and bereavement that we feel, on the one hand, about the death of a baby or a small child and, on the other, about a miscarriage involving a threemonth fetus. The two occurrences are not equivalents, in the minds of most persons. We don't have funeral services for fetuses; we do not require death certificates for still-births under 20 weeks from the time of conception; we do not measure a person's age from the time of conception, but from the time of his birth—he is not 9 months old when he is born.

We do not, in the law, treat abortion as the equivalent of murder; it is not a homicide under the Penal Code; abortion is not a capital offense as is murder, and I suggest that no one would seriously advocate that punishment.

Whether or not one considers a fetus to be a life in being, existing law gives no weight whatsoever to actual lives in being—the mother with serious health problems, the girl who has been raped. It is time that these lives, which we can all agree are human beings, were given some consideration in the law. This bill does just that—it recognizes these kinds of situations as values to be weighed in the decision of whether or not an abortion is proper in a particular situation. This bill says there are values about which we are concerned other than simply the fetus; it recognizes human values and human lives and accords them some consideration under the law.

The argument of the right to life of a fetus is, it seems to me, a mixture of moral and legal theories.

On the one hand, there is the moral or theological argument that what we are proposing to do is immoral. I consider myself a moral person; I consider the California Council of Churches, the other religious groups who support the bill, the many hundreds of clergymen who support the bill, all to be moral persons, all as concerned with life and the values of human life as those who are opposed to the bill.

We simply differ from the opponents of the bill, and I think we should recognize these differences as understandable, and reasonable, and as honestly held differences of opinion among equally moral men.

Those who favor the bill are concerned about the fetus, but we are also concerned about the morality-or lack of morality-of our present law, which drives thousands upon thousands of American women each year to quacks and to criminal abortionists and to perform abortions upon themselves with soap solutions and coat hangers and which drives thousands of American women each year to their deaths or to serious injury.

The legal argument seeks to equate a fetus and a human being in the eyes of the law.

But the real legal question is: whether a fetus is a “person" as that word is used in the due process clause of the Constitution, and thus whether or not it can be deprived of life without due process of law.

The courts have clearly held that a fetus is not such a person.

If it were, our existing law and the laws of the other 49 states which allow abortions would be unconstitutional.

If it were, the less restrictive laws of several other states would have been held unconstitutional.

On the two prior occasions when a bill similar to this was offered by me, the Legislative Counsel of this Legislature held that there was no problem of constitutionality involved; the American Law Institute, in suggesting a similar and less restrictive statute in its model penal code, suggested in its commentary no constitutional problems whatsoever; and the overwhelming support we have received from the Deans of the major law schools in this state and from the Convention of Bar Delegates suggests there is no real constitutional question involved. Indeed, it is my opinon that the Supreme Court, if it moves in any direction in this area of constitutionality, will extend the concept of invasion of right of privacy enunciated in the Griswold birth control case and hold unconstitutional restrictions on the performance of abortions in the several states.

Finally, let me emphasize that this is an entirely voluntary and permissive law. There is absolutely no possibility nor intimation of compulsion about it. No one whose moral, religious or philosophical beliefs are offended by this bill or are different from the indications for abortions set forth in this bill need avail herself—nor would she avail herself—of the protection of this law.

As with all issues, although a great many people feel terribly strongly about it-one way or the other—this issue is not black and white.

I am the first to admit that the answers are not easy-and, to be more correct, the answer varies from individual to individual.

The arguments of the opposition are valid to those who make them, but they are not valid for me. As a matter of fact, there are many, many more people for

whom they are invalid than for whom they are valid-and it is about time that the rights and beliefs of this great majority are given some recognition in our criminal law.

In the last analysis, that is what this bill is all about.

It is an attempt to restore a degree of freedom of choice and of conscience to the many thousands of women who are annually confronted with this terrible dilemma and whose choice under these terrible circumstances is different from the choice which a minority of people of this state would force upon everyone by the retention of our present inhumane law.

I respect and admire the sincerity and moral convictions of the views of those who are opposed to abortions for any reason. This bill is a request that they respect the sincerity, the religious beliefs, and convictions of the majority of their fellow Californians.

This measure was defeated in the Senate Judiciary Committee on June 30, 1970.


As you recall, we enacted legislation in 1967 called the Therapeutic Abortion Act.

That law permits abortion when there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother, and when the pregnancy resulted from rape or incest.

It requires that the abortion be performed by a licensed physican in an accredited hospital, and only after approval by a committee of the hospital's medical staff. There is no residency requirement.

Under that act, 5,000 women were legally aborted in 1968, and almost 9,200 during the first 9 months of 1969. Indications are that many more abortions will be performed this year than were done last year.

Since passage of the Act, 12 other States hare similarly liberalized their laws and, during the past 4 months, the legislatures of four other States have virtually eliminated all restrictions on abortions.

New York's law requires only that the operations be performed by doctors, and requires that they be performed during the first 24 weeks of pregnancy. There is no residency requirement.

Hawaii's law requires that abortions be performed by a licensed doctor in a hospital, and that the patient be a resident of the State for 90 days. In Alaska, where a veto by the Governor was overridden by both houses of the legislatures, the law is similar.

A more liberal law, making abortion purely a medical matter between a physician and his patient, was passed in Maryland, but was recently vetoed by the Governor.

The bill before you today would repeal the Therapeutic Abortion Act of 1967, and amend the Penal Code to provide that abortions are illegal only when they are not performed by a physician or surgeon. It requires as well that the abortion be performed by the 20th week of pregnancy when the fetus is still nonviable—that is, before it becomes capable of sustaining life on its own. There is no residency requirement, and no requirement that the operation be performed in a hospital.

We have several witnesses who will cover most of the areas and questions that will be of interest and concern to the committee, but I want to mention a few of the reasons why I believe this bill should be adopted.

1. Abortion should not be a matter of legislation and control by the State, but should be left as a matter of individual conscience and choice.

There is simply no one correct answer to those moral and philosophical questions raised by this issue, and there never will be-and the State will never be able to successfully legislate one.

The legislature should choose not to control or regulate this matter by law, but should withdraw from this area and remain neutral--neither approving nor disapproving of abortion nor specifying, as we do now, those instances in which it is right to legally abort a fetus and those in which it is not.

Total reveal is more consistent with the views of those who are opposed to all abortion than is a moderate liberalization such as the one we presently have in California. Under our existing law, the State continues to judge some abortions as morally permissible; under a repeal bill, such as that before you, the State would make no judgment, but would allow that judgment to be made by each individual citizen.

2. I think it is time that the legislature recognizes that every woman has a right not to bear children as well as to bear them, and that she has a right to privacy in matters relating to marriage, reproduction, sex, and family life. The courts have already recognized these rights, and we should act quickly to guarantee their availability to all women in our State.

3. We must end compulsory pregnancy. We must stop forcing women to have children they do not want. It makes no sense to force childbirth and the raising of children on women who do not want it and are not prepared for it. This bill will help guarantee that every child who is born will come into the world wanted, loved, and cared for.

No contraceptive method is perfect, and a safe and legal alternative means of terminating unwanted pregnancies should be made available when attempts to prevent conception have failed.

I draw your attention particularly to the fact that many hundreds of thousands of women have recently gone off the pill-because of adverse publiciety concerning its safety-in favor of less effective contraceptive methods and, in some cases, no contraception at all.

Abortion should be available as a back-stop method of birth control to allow and encourage the use of milder, less dangerous—and, therefore, less effective pills-as well as other means of contraception.

Mention should also be made here of the fact that there is no longer any clearcut distinction between contraception prevention and pregnancy termination: Both the intra-uterine loop and the "morning-after” pill can be more accurately described as abortifacients than as contraceptives, but nobody is getting terribly exercised about their use.

4. Increasingly, it has become possible to identify severe birth defects by prenatal testing, until it is now possible to identify about 25% of all severely defective unborn children early enough for therapeutic abortions. Women should not be forced to bear these severely defective children.

5. Our restrictive abortion laws have never fulfilled their intended purpose of lowering the incidence of abortion.

Whether we like it or not, and however restrictive our laws may be, a million or so women each year will continue to get abortions to end unwanted pregnancies, and we must decide whether we will allow them to seek decent medical care, or continue our inhumane treatment of them-forcing them to have criminal and self-induced abortions.

Always, with this issue, we get back to the reality that we do not have to face with most other issues : It does not make much difference what the law is.

The existence of restrictions in the law does not deter women from seeking out and obtaining abortions; it just prevents them from getting professional help from qualified doctors.

Despite the sizeable number of abortions which are now being legally performed in California, the passage of our 1967 law does very little to eliminate the tragic and squalid problem of criminal abortions—which continue to constitute the vast majority of all such operations. If we are not to bury our heads in the sand and ignore the plight of the 70 or 80 or 90 thousand California women who are illegally aborted each year, we must make available to them as well the proper kind of medical treatment and care.

6. We are total hypocrites when it comes to enforcing any abortion laws we have on our books: We don't put women in jail for having illegal abortions.

Not one of you believes that women should go to prison for having abortions which are not allowed under our existing law. So all that we are doing by forbidding the great majority of abortions, is punishing these women by making it difficult if not impossible for them to receive proper medical care--and by driving them into the hands of quacks and criminal abortionists.

We're not deterring the performance of abortion; we are simply guaranteeing that the great majority of them are improperly and inhumanely done.

Every other kind of felony in this state is prosecuted by our law enforcement officials. If we really believe that abortion is a felony, let's start prosecuting the thousands of California women who are illegally aborted each year.

And, if we don't think they should be treated as felons, let's cut out the hypocrisy and repeal our law.

Any law which is not enforced, and is in fact unenforceable, should be repealed. This was the American experience with prohibition laws, and the same point applies to abortion statutes.

"The millions of American women who have had illegal abortions are not immoral women, nor do they feel disrespect for human life. Most such women have other children they care for, often more adequately because they aborted an unwanted pregnancy. That abortion rates are higher in Catholic than in nonCatholic countries should itself be sufficient evidence that having an abortion is not an index of immorality or lack of respect for life. If those who break the law are not immoral, and the law does nothing to restrict the incidence of behavior it was designed to restrict, the only effect of its retention on the statute books is to encourage disrespect for the law generally.” (Alice Rossi, "Abortion and Social Change.")


ABORTION ACT (A report to the 1972 Legislature pursuant to Section 25955.5 of the Health

and Safety Code, State of California Human Relations Agency, Department of Public Health, Bureau of Maternal and Child Health)

INTRODUCTION In the 1971 session of the legislature, SB 385 was passed requiring the State Department of Public Health by regulation to establish and maintain a system for the reporting of therapeutic abortions. Prior to this the Department operated a voluntary reporting system based on Assembly Concurrent Resolution 113, Chapter No. 177, 1967. This report is provided in conformity with Section 25955.5 of the Health and Safety Code which was added by passage of SB 385.

The information for this report comes from two sources. One is quarterly reports from hospitals on therapeutic abortions. The second source is a survey questionnaire sent to pregnancy counseling services throughout the State.

Because of the marked increase in abortions in 1971, data on the characteristics of therapeutic abortion patients was collected only in the first quarter. In subsequent quarters the hospitals simply reported total therapeutic abortions, total applications, and associated deaths. Thus, the data on personal characteristics presented here are based on the percentage distributions observed in the first quarter of 1971 applied to the total 116,749 abortions for the year.

Hospital reporting is nearly complete with only two major hospitals not providing detailed information in time for this report. The individual characteristics described here are routinely entered in hospital records and believed to be accurately reported. Attempts to gather information on complications and previous therapeutic abortions were judged to be too incomplete for analysis.


Over the four years since the enactment of the Therapeutic Abortion Act, there has been a gradual shift in the demographic composition of the abortion caseload. As the procedure has become more available to all segments of the population, the proportion of Negro women has increased from 7 to 14 percent (blacks make up 9 percent of all live births), with a corresponding decrease among white women (Table 1).

About one-half of abortions performed are for a first pregnancy (compared with 41 percent first births among all births), a proportion which has decreased slightly since 1968. About three in ten women are under 20 (births to teen-agers constitute 17 percent of births). There has been a decrease over the past four years in the proportion of women 30 and older having abortions : 18 percent of women in 1971 compared with 26 percent in 1968.


The age distribution of women having abortions related to both population and live birth data is presented in Table 2. Assuming minor population changes in the years around the census, 1970 population data were used as the base in computing age-specific abortion rates for 1969, 1970, and 1971. In 1971 the legal abortion rate in California reached 24.2 per 1,000 women aged 15–44. The highest rate was in the age group 20–24 years with a rate of 41.4. The minority age in

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