ABORTIONS ‑- CONSENT OF HUSBAND ‑- PERFORMANCE IN PUBLIC HOSPITAL HOSPITAL ‑- DEATH CERTIFICATES
(1) The requirement of RCW 9.02.070 that an abortion, in order to be noncriminal, be performed upon a married woman only with the consent of her husband, remains presumptively constitutional in the absence of a ruling by the U.S. Supreme Court or the Washington supreme court to the contrary.
(2) RCW 9.02.080, which permits a hospital to refuse to allow its facilities to be used in the performance of an abortion, remains presumptively constitutional even as to public hospitals in the absence of a decision by the U.S. Supreme Court or the Washington supreme court to the contrary.
(3) A hospital may require that prior to an abortion where the fetus is believed to be in excess of 20 weeks, that an attending physician consult with another physician to determine that the pregnancy has not gone beyond the 28th week or second trimester.
- - - - - - - - - - - - -
August 13, 1975
Honorable Alan Bluechel
State Senator, 45th District
12534 68th Avenue NE
Kirkland, Washington 98033 Cite as: AGLO 1975 No. 71
Dear Senator Bluechel:
We are writing in response to your recent letter, and the attachment thereto, requesting our opinion on several questions pertaining to the performance of abortions under RCW 9.02.070, et seq. Specifically, you have asked:
"1. Is the requirement of R.C.W. 9.02.070 [[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, with the consent of her husband', a constitutional provision?
"2. Must a public hospital district permit the performance of a nontherapeutic abortion?
"3. Is the statutory requirement that the consent of the 'natural father' prior to termination of a pregnancy, a constitutionally enforceable condition?
"4. R.C.W. 70.58.160 [[RCW 70.58.160]]requires the filing of fetal death certificates in certain cases. Is this requirement constitutional or does it violate the constitutional right of privacy?
"5. May a hospital require that prior to an abortion where the fetus is believed to be in excess of 20 weeks, that an attending physician consult with another physician to determine that the pregnancy has not gone beyond the 28th week or second trimester?"
We respond to these questions in the manner set forth below.
[[Orig. Op. Page 2]] ANALYSIS
RCW 9.02.070, to which reference is made in your first question, reads 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 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."
In a prior opinion to you, AGO 1973 No. 7 [[to Alan Bluechel, State Representative on February 14, 1973]], copy enclosed, we concluded that certain aspects of this statute could no longer be constitutionally enforced because of decisions rendered by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 35 L. ed [[L.Ed.]]2d 147, 93 S.Ct. 705 (1973), andDoe v. Bolton, 410 U.S. 179, 35 L. ed [[ L.Ed.]]2d 201, 93 S.Ct. 739 (1973). Specifically, we advised you that because of these decisions:
"(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.
[[Orig. Op. Page 3]] "(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.
". . .
"(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 unforceable 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.
". . ."
In addition, however, we also concluded that because certain other aspects of RCW 9.02.070 were outside of the scope of the Roe and the Doe decisions, these aspects of the law could still be enforced in our state. Thus, we said:
". . .
"(3) A state may continue to require all abortions to be performed by licensed physicians only.
". . .
"(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, [[Orig. Op. Page 4]] respectively, . . .' having not been passed upon in these recent United 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."
Likewise, referring to the companion provisions of RCW 9.02.080,1/ we similarly advised you that because of the absence of any contrary court ruling:
"(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."
Because of the subsequent decision of our own state supreme court inState v. Koome, 84 Wn.2d 901, 530 P.2d 260 (1975), to which you have referred in your letter, we now must qualify the foregoing conclusions to the extent that they involve the "parental consent" requirement of RCW 9.02.070. In this recent case the Washington court specifically held that so much of the foregoing statute as conditions the right of an unmarried minor woman to terminate her pregnancy upon the consent of her parent or guardian is violative of both the due process and equal protection clauses of the federal constitution.
On the other hand, while the same fate may well ultimately befall the companion "marital consent" requirement of our statute, this has not yet occurred in such a manner as to require us to withdraw from it the presumption [[Orig. Op. Page 5]] of constitutionality which, as a matter of long-standing office policy, we ordinarily apply to any duly enacted statute such as RCW 9.02.070,supra.2/ While a similar requirement has recently been struck down by a lower federal court inCoe v. Gerstein, 376 F.Supp. 695 (USDC, SD, Fla., 1973), no such binding ruling has as yet been handed down either by the United States Supreme Court or by our own state courts.3/ Also, we should note that a contrary result has even more recently been reached by another federal district court in Planned Parenthood of Central Mo. v. Danforth, 392 F.Supp. 1362 (USDC, ED, Mo. 1975).
This, also, must be our basic response to your second question. In a letter opinion dated December 9, 1970, to the prosecuting attorney of Benton county, copy enclosed, after quoting the provisions of RCW 9.02.080,supra, we said:
"We can see no basis for excluding a hospital operated by a public hospital district from the purview of this section. Accordingly, our answer to your question is in the negative. A public hospital district is not required, any more than is any other hospital, to make its facilities available for the performance of abortions."
[[Orig. Op. Page 6]] Again, as with the marital consent issue, this aspect of the abortion question has been litigated and a similar statute has been held to be unconstitutional by another lower federal court inHodgson v. Anderson, 378 F.Supp. 1008 (USDC Minn. 1974), appeal dismissed for want of jurisdiction 42 L. ed [[L.Ed.]]2d 832, 95 S.Ct. 819 (1975) ‑ as applied to public hospitals. See, also,Nyberg et al v. City of Virginia, 495 F.2d 1342 (CA8, 1973), cert. den. 419 U.S. 891, 42 L. ed [[L.Ed.]]2d 2136, 95 S.Ct. 169 (1974).
Therefore, it may well be that our own court would similarly rule if the question were to be litigated here on the basis of a refusal by a public hospital to allow its facilities to be used for the performance of an abortion. Until either the Washington court or the United States Supreme Court so rules on the merits, however, we must continue to presume RCW 9.02.080, supra, even as it applies to public hospitals, to be constitutional.
Your next question presently puzzles us because we fail to find in RCW 9.02.070,supra, or in any other present statute, any requirement that the consent of the "natural father" be obtained prior to a termination of pregnancy. If the "natural father" is also the husband of the prospective mother, our earlier discussion of the marital consent requirement of the statute will apply here as well. Otherwise, no consent will be required by the father because no statute purports to say anything different. Cf.,Doe v. Doe, Mass., 314 N.E.2d 128 (1974), to the effect that even an estranged husband has no common law or constitutional right to determine whether or not his child should be aborted.4/
Your fourth question regarding the constitutionality of RCW 70.58.160 also necessitates an invocation of the above explained policy respecting the issuance of an opinion on the constitutionality of a duly enacted statute. This statute, which you have here questioned, was originally [[Orig. Op. Page 7]] enacted by § 1, chapter 159, Laws of 1945, and, as later amended by § 12, chapter 5, Laws of 1961, Ex. Sess., provides as follows:
"A certificate of every death or fetal death shall be filed with the local registrar of the district in which the death or fetal death occurred within three days after the occurrence is known, or if the place of death or fetal death is not known, then with the local registrar of the district in which the body is found within twenty-four hours thereafter. In every instance a certificate shall be filed prior to the interment or other disposition of the body: Provided, That a certificate of fetal death shall not be required if the period of gestation is less than twenty weeks."
Moreover, not only must we presume this statute to be constitutional until otherwise ruled upon by a court of competent jurisdiction but, in addition, our present belief is that the statute is in fact a constitutionally defensible legislative enactment.
Finally, you have asked:
"May a hospital require that prior to an abortion where the fetus is believed to be in excess of 20 weeks, that an attending physician consult with another physician to determine that the pregnancy has not gone beyond the 28th week or second trimester?"
RCW 9.02.010, which predated the enactment of RCW 9.02.070, supra, provides that:
"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;
[[Orig. Op. Page 8]] "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."
This statute is still fully valid and enforceable during the final trimester of a woman's pregnancy. AGO 1973 No. 7,supra. It therefore would appear to us to be entirely reasonable, and legally permissible, for a hospital ‑ even if otherwise required to permit its facilities to be used for alegal abortion ‑ to take a step such as is contemplated by your question in order to obtain an additional assurance that the operation to be performed in a given case will, in fact, be legal. Hence, we answer this question in the affirmative.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/"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."
2/Perhaps the most succinct explanation of this policy appears in AGO 1945-46, page 269 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]], as follows:
". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts. Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."
3/Although Coe v. Gerstein, supra, was appealed to the United States Supreme Court, only certain procedural issues were raised and therefore, the Supreme Court's response did not constitute either an affirmance or reversal of this aspect of the case. See,Gerstein v. Coe, 417 U.S. 279, 41 L. ed [[L.Ed.]]2d 68, 94 S.Ct. 2246 (1974), and Poe v. Gerstein, 417 U.S. 281, 41 L. ed [[(L.Ed.]]2d 70, 94 S.Ct. 2247 (1974).
4/Although the United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 31 L. ed [[L.Ed.]]2d 551, 92 S.Ct. 1208 (1972), has held that a putative father must, under certain circumstances, be given advance notice of the subsequent adoption of his child, once born, it would not appear to us that this case would be of any significant support to the unmarried natural father in the context, instead, of an abortion otherwise lawfully performed under RCW 9.02.070.