ABORTIONS

ABORTIONS ‑- TERMINATION OF PREGNANCY BY PERSON OTHER THAN A LICENSED PHYSICIAN

Neither chapter 3, Laws of 1970 (Referendum No. 20), nor any other law or regulation currently in effect, allows a pregnancy of a woman to be terminated by any person other than a physician licensed under either chapter 18.71 RCW or chapter 18.57 RCW, or by the pregnant woman herself when following the directions of a physician so licensed.

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                                                                 August 18, 1971

Honorable Peter D. Francis
State Senator, 32nd District
7300 E. Greenlake Dr. No.
Seattle, Washington 98115

                                                                                                                 Cite as:  AGO 1971 No. 26

Dear Sir:

            This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:

            Does chapter 3, Laws of 1970 (Referendum No. 20), or any other law or regulation currently in effect, allow the pregnancy of a woman to be aborted by any person other than a physician licensed under chapters 18.71 or 18.57 RCW, or the pregnant woman herself when following the directions of a physician so licensed?

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

                                                                     ANALYSIS

            Your question primarily pertains to an act of the 1970 legislature, chapter 3, Laws of 1970, which is commonly known as the abortion law.  Its substantive provisions (§§ 1-3 and 5) are now codified as RCW 9.02.060-9.02.090.  As enacted by the 1970 legislature, this measure contained a referendum clause requiring it to be submitted to the people  [[Orig. Op. Page 2]] 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 majority of the electors voting thereon, and hence is now in effect as a duly enacted law of this state.

            In order to place the provisions of this act which are pertinent to your question in the proper focus, we must first make note of our state's preexisting criminal statutes regarding the performance of abortions ‑ specifically, RCW 9.02.010 ‑ 9.02.030, providing as follows:

            RCW 9.02.010:

            "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."

            RCW 9.02.020:

            "Every pregnant woman who shall take any medicine, drug or substance, or use or submit to the use of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall be punished by imprisonment in the state penitentiary for not more than five years or by a fine of not more than one thousand dollars."

             [[Orig. Op. Page 3]]

            RCW 9.02.030:

            "Every person who shall manufacture, sell or give away any instrument, drug, medicine, or other substance, knowing or intending that the same may be unlawfully used in procuring the miscarriage of a woman, shall be guilty of a gross misdemeanor."

            The critical point to be noted, in considering the over-all effect of our new, 1970, abortion act is that these preexisting statutory provisionsare still in effect; they have not been repealed or in any other manner replaced by the new law.  With this in mind, we turn next to §§ 1 and 2 of the new abortion act, presently codified as RCW 9.02.060 and 9.02.070, which provide, respectively, as follows:

            Section 1 (RCW 9.02.060):

            "Neither the terminationby a physician licensed under chapter 18.71 or 18.57 RCW of the pregnancy of a woman not quick with 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."  (Emphasis supplied.)

            Section 2 (RCW 9.02.070):

            "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  [[Orig. Op. Page 4]] 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."

            When these two new sections are read in context with the preexisting provisions of RCW 9.02.010-9.02.030, supra, it becomes readily apparent that the new act simply carves out an exception to the general prohibitions against abortions which are contained in the prior laws.  The general thrust of this exception is set forth in § 1, chapter 3, Laws of 1970, Ex. Sess. (RCW 9.02.060), supra ‑ meaning, clearly, that the termination of a pregnancy must be performed by "a physician licensed under chapters 18.71 or 18.57 RCW," or by the pregnant woman herself "when following the directions of a physician so licensed,"1/ in order to come within the scope of the exception.  Section 2 (RCW 9.02.070) then merely sets forth a list of further conditions which must exist with respect to the particular case at hand in order that the pregnancy in that case "may be lawfully terminated under this act . . ."  (Emphasis supplied.) Accordingly,  [[Orig. Op. Page 5]] in so far as the provisions of this 1970 act are concerned, the question which you have asked must be answered in the negative.

            It has, nevertheless, been suggested to us during the course of preparing this opinion that an even more recent act, chapter 30, Laws of 1971, 1st Ex. Sess., could have the effect of enlarging the class of persons who may perform abortions in this state.  This new act deals with two new categories of medical practitioners designated as physician's assistants and osteopathic physician's assistants, respectively.  It is true that under its provisions these persons will be allowed to practice medicine or osteopathic medicine in this state to the limited degree sanctioned by the board of medical examiners or the committee of osteopathic examiners, as the case may be.  However, the critical point to be noted is that the 1970 abortion act does not grant its exemption from the criminal laws against abortions to any person who may be authorized to practice medicine (or osteopathic medicine); instead, it grants this exemption only to persons who are actually licensed as physicians under either chapter 18.71 RCW or chapter 18.57 RCW, and, most certainly, a physician's assistant (or an osteopathic physician's assistant) would not meet this criterion.  Moreover, in any event, it is our understanding that neither of these two regulatory boards is currently considering any possibility of including abortions within the purview of an assistant's limited fields of permissible medical practice.