Guideline on Abortion

By throwing out the conviction of a Beverly Hills physician last week, the California Supreme Court provided new hope to those who oppose antiabortion laws across the nation. By a 4-to-3 margin, the influential court declared invalid a law that for more than 100 years made it a crime to perform an abortion on a woman except when "necessary to preserve her life." The majority ruled that the law was both too vague and an improper encroachment on women's fundamental right to choose whether or not to bear children.

Actually, the law had been repealed two years ago. But Dr. Leon Belous had been convicted early in 1967, when it was still in force. To replace the statute, California passed more liberal legislation that permits hospitals to perform abortions on girls under 15, in cases of rape and incest, or when having a baby may seriously harm the-phys-ical or mental health of the mother. The California decision--the first of its kind by a major state court--now casts constitutional doubt on rigid abortion laws in no fewer than 41 other states. Also, by emphasizing that a woman has a right to decide whether or not she wants a child, it may have given California hospital abortion committees the support they need to be more liberal in approving abortions.

Many Supporters. Belous was brought to trial after he referred a young unmarried woman to an experienced Hollywood abortionist, who performed the operation for her. Because of the woman's emotional state, Belous had feared that she might try an abortion on herself or seek one in nearby Tijuana, Mexico--either of which would have involved a risk to her life Whatever his intentions, he was convicted, fined $5,000 and put on probation for two years. His appeal attracted an awesome list of supporters.

In one friend-of-the-court brief, 17 prominent lawyers argued that "a particular respected church" (the Roman Catholic Church, which fought against liberalization of abortion laws) had no right to impose its religious views on the state. Another amicus brief was signed by 178 deans and other professors of medical schools across the U.S.* Their brief spoke of a "hard--almost brutal--reality." The statute that was "designed in 1850 to protect women from serious risks to life and health," they declared, "has in modern times become a scourge."

In the decision, California Supreme Court Justice Raymond Peters noted that the state once had an obvious interest in preventing abortions. Any internal surgery used to be dangerous, said Peters, in the days when doctors could not control infection. Today, he pointed out, it is safer for a woman to have a hospital abortion in her first three months of pregnancy than to have a child. For this reason, said Peters, the statute cannot be defended on the ground that it serves to prevent death from the abortion procedure. This interpretation, he continued, would actually infringe on a woman's right to life. Moreover, it would be an unjustified invasion of privacy "in matters related to marriage, family and sex." Efforts to reinterpret the statute, Peters said, had only muddied it with elusive psychological considerations. For example, one California appeals court recently upheld a doctor who had performed an abortion on a woman who psychiatrists said might commit suicide if she did not have one. Thus the law did not clearly define the boundary between criminal and legal abortion.

The court did not deal with constitutional issues raised by California's new law, the Therapeutic Abortion Act of 1967. The decision did suggest, though, that the new act makes it easier for a doctor to decide when he may legally perform an abortion. Roy Lucas, a lawyer on the board of the Association for the Study of Abortion, believes that the new act is still too vague, but applauds the new ruling. He believes that it provides a weighty precedent for court action in other states and affirms a legal trend in recent years that would make all such intimate matters a private concern beyond the reach of the state.

* The list included the former dean of the University of Southern California Medical School, Roger O. Egeberg, who is now HEW Assistant Secretary for Health.

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