NECESSITY FOR CONSENT BY HUSBAND TO TERMINATION OF MARRIED WOMAN'S PREGNANCY

ABORTIONS ‑- MARRIAGE ‑- RESIDENCE ‑- NECESSITY FOR CONSENT BY HUSBAND TO TERMINATION OF MARRIED WOMAN'S PREGNANCY

(1) A married woman does not have to be physically residing in the same place of abode as her husband at the time of termination of her pregnancy under RCW 9.02.070 in order for his consent thereto to be required.

(2) A married woman should be regarded as "residing" with her husband to the extent that his consent to a termination of her pregnancy under RCW 9.02.070 is required, where the only reason for his absence from her place of abode is his employment; e.g., military or civil service overseas.

(3) If a married couple is living separate and apart either because of the husband's desertion or some other breakdown of the marital relationship, the husband's consent to the termination of his wife's pregnancy under RCW 9.02.070 is not required even though no legal separation (e.g., decree of separate maintenance under RCW 26.08.120) has been granted.

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                                                                   April 26, 1971

Honorable Dale E. Hoggins
State Representative, 21st District
Legislative Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1971 No. 15

Dear Sir:

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

            (1) Does a married woman have to be physically residing in the same place of abode as her husband at the time of termination of her pregnancy under RCW 9.02.070 in order for his consent thereto to be required?

            (2) If question (1) is answered in the negative, would a married woman be regarded as "residing with" her husband where the only reason for his absence from her place of abode is his employment, e.g., military or civil service overseas,  [[Orig. Op. Page 2]] without any manifestation of intent on his part to establish a separate domicile where employed?

            (3) If a married couple is living separate and apart either because of the husband's desertion or some other breakdown of the marital relationship, but no legal separation (e.g., decree of separate maintenance under RCW 26.08.120) has been granted, is the husband's consent to the termination of the wife's pregnancy under RCW 9.02.070 required?

            We answer questions (1) and (3) in the negative, and question (2) in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your questions pertain 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 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.  Accord, AGO 1971 No. 4, copy enclosed.

            The specific provision of this act which has given rise to your questions is set forth in that portion of § 2 (RCW 9.02.070) 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  [[Orig. Op. Page 3]] 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.)

            Each of your questions revolves around the meaning which is to be given the phrase "residing with" as used in this statute ‑ and each question, in turn displays the ambiguousness of this phrase.  It is clearly susceptible of two interpretations.  A narrow interpretation would require the two parties physically to share the same abode, while a broader one would be satisfied if both parties regarded the particular abode as "home" even if one were physically absent.  To resolve this ambiguity, resort must be made to the applicable rules of statutory construction.

            The cardinal rule of statutory construction and interpretation is to give effect to the intention of the legislature.  Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).  If possible, this intent is to be deduced from the words of the statute themselves.  Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965).  When looking to the meaning of words in a statute, they are to be given their usual and ordinary meaning in the absence of anything in context to the contrary.  Foremost Dairies v. State Tax Commission, 75 Wn.2d 758, 453 P.2d 870 (1969).  Conversely, words of questionable meaning are to be interpreted in the light of the context in which they appear.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  And, of course, statutes are to be so construed as to avoid absurd or unjust results wherever possible.  In re Horse Heaven Irrigation District, 11 Wn. 218, 118 P.2d 972 (1941).

            Two other rules to be noted are the principles that statutory exceptions, as well as penal statutes, generally, are to be strictly construed.  State v. Christensen, 18 Wn.2d 7, 137 P.2d 512 (1943); and State v. Moser, 41 Wn.2d 29, 246 P.2d 1101 (1952).  However, neither of these rules,  [[Orig. Op. Page 4]] whichby themselves might tend to support a narrow interpretation of "residing with" in the present statute,1/ are to be applied so as to produce a forced and over-strict construction and thereby defeat the obvious or apparent intent of the legislature.  See,State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957).

            Finally, in so far as the particular words under consideration are concerned, our court inMcGrath v. Stevenson, 194 Wash. 160, 162, 77 P.2d 608 (1938), has told us that:

            "Each of the terms 'reside,' 'residing,' 'resident,' and 'residence' is elastic.  To interpret the sense in which such a term is used, we should look to the object or purpose of the statute in which the term is employed. . . ."

            From the standpoint of its "usual and ordinary" meaning, the word "reside" may be contrasted with the phrase "live with."  "Reside" is defined in Webster's New World Dictionary (College ed. 1966) at p. 1238, as meaning:

            "1. to dwell for a long time; have one's residence; . . ."

            On the other hand, "live with" is defined, at p. 857 of this same dictionary as meaning:

            "to dwell with; be a lodger at the home of; to cohabit with."

            Thus, it may readily be seen that the phrase "reside with" connotes a relationship of a more formal or permanent nature than the phrase "live with."  More than mere physical presence would be needed to establish this relationship and more than mere physical absence would be needed to disrupt it.

            Moreover, such an interpretation in the present context  [[Orig. Op. Page 5]] comports with common sense, in that the right of a husband to participate in decisions regarding a possible termination of his wife's pregnancy should not be defeated by his mere temporary absence (perhaps unavoidable) from the marital home.  In this respect, the legislature's use of the concept of residence in this statute may be analogized to its use of "residence" as a jurisdictional requirement for the initiation of a divorce action under RCW 26.08.030 ‑ in which context the term has been held to be synonymous with domicile.  See,Thomas v. Thomas, 58 Wn.2d 377, 363 P.2d 107 (1961), and cases cited therein.  The concept of domicile, in turn, has been aptly summarized in the recent case ofStevens v. Stevens, 4 Wn.App. 79, 82 (1971), as follows:

            "To establish a domicile requires the physical presence at the place of intended domicile accompanied by the intention of making that place one's home.  Sasse v. Sasse, 41 Wn.2d 363, 249 P.2d 380 (1952);In re Estate of Lassin, 33 Wn.2d 163, 204 P.2d 1071 (1949);McCord v. Rosene, 39 Wash. 1, 80 P. 793 (1905); White v. Tennant, 31 W.Va. 790, 8 S.E. 596 (1888).  A domicile, once established, is not destroyed by a temporary absence no matter how long continued.  Sasse v. Sasse,supra; Marcus v. Marcus, 3 Wn.App. 370, 475 P.2d 571 (1970);White v. Tennant, supra.  Once acquired, domicile is presumed to continue until changed and the change must be shown by substantial evidence.  SeeFiske v. Fiske, supra.  It is the generally accepted rule that a woman at marriage loses her own domicile, and acquires that of her husband, although she may acquire a separate domicile when living apart from her husband.  Buchholz v. Buchholz, 63 Wash. 213, 115 P. 88 (1911); 25 Am.Jur.2dDomicil §§ 48, 53 (1966).

            Question (1):

            It is our best judgment, based upon the over-all context and subject matter of chapter 3, Laws of 1970, that a concept equivalent to domicile is the one which the legislature had in mind when it spoke of a married woman ". . . residing with her husband . . ."  From this it follows that  [[Orig. Op. Page 6]] a married woman does not need to be physically residing in the same abode as her husband in order to fit the requirement of RCW 9.02.070 with respect to the necessity of his consent to a termination of her pregnancy.  Question (1) is therefore answered in the negative.

            Question (2):

            In the normal situation, where the husband and wife share the same home, no question arises.  Yet, a serious question may arise where one party to a marriage is absent for an extended period of time.  Such an occasion would exist in the instances you have posed in question (2); i.e., military or civil service overseas.

            In view of the considerations set out above, it is logical to analyze this question within the conceptual framework used to analyze questions concerning the existence of domicile.  Within this framework, a question concerning a change of matrimonial domicile is to be answered by establishing the intent of the parties, and particularly the husband, since the husband's domicile is generally considered to be the wife's.  Stevens v. Stevens,supra.  Yet, although intent is, of course, subjective, its existence is to be established from objective facts.  Stevens v. Stevens,supra; Marcus v. Marcus, 3 Wn.App. 370, 475 P.2d 571 (1970);Volmer v. Volmer, 231 Ore. 57, 371 P.2d 70 (1962).

            In the situation covered by your second question, the husband is "away from home" solely because of his employment ‑ without any manifestation of intent on his part to establish a separate domicile where he is stationed or otherwise employed.  In other words, the husband continues to regard his home here in this state as his residence, or domicile, with full intent to return.  Therefore, we conclude that the husband in this circumstance continues to "reside with" his wife for the purposes of the subject statute.2/

             [[Orig. Op. Page 7]]

            Question (3):

            Your final question involves a situation where the married couple is living separate and apart by reason of the husband's desertion or some other breakdown of the marital relationship.  Based upon the foregoing analysis, the requisite intent to maintain a common marital domicile would here no longer exist; instead, a lack of intent of the parties to continue sharing a common residence would be established from the objective situation so that the needed relationship would no longer exist.  Under these circumstances, the wife would not be "residing with" her husband, and his consent to her termination of pregnancy under RCW 9.02.070 would be unnecessary.

            To the foregoing we should, however, add one concluding observation.  Because of the over-all context of the statute, we have in this opinion rejected a narrow or "strict" construction of the phrase "residing with" as a matter of law in spite of the two rules of construction earlier noted which, applied alone, would tend to support such a construction.  However, even though we have, instead, construed that phrase more broadly so as to include the element of intent (as in the case of "domicile"), a somewhat different analytical approach will necessarily be applicable in determining thefactual aspects of residence in any given case in which a married woman's pregnancy has been terminated without her husband's consent.  This question, of course, will ordinarily have to be decided by the trier of facts (judge or jury) in the context of a criminal prosecution ‑ either against the woman,  [[Orig. Op. Page 8]] or her physician, or both ‑ and at this point, such defendants will be entitled to all of the benefits of the presumption of innocence and the correlative rule requiring proof of guilt "beyond a reasonable doubt."  See, e.g.,State v. Gillingham, 33 Wn.2d 847, 207 P.2d 737 (1949).  Thus, while we have said that a married woman need not be physically living in the same place as her husband in order to be "residing with" him for the purposes of the subject statute so long as the requisite intent to retain a common marital domicile is present, any reasonable factual doubts as to the existence of this intent would sustain the presumption of innocence and prevent a conviction under the statute in question.