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People Ex Rel. Hanrahan v. White

OPINION FILED MARCH 30, 1972.

THE PEOPLE EX REL. EDWARD

v.

HANRAHAN, STATE'S ATTORNEY, PETITIONER,

v.

WILLIAM S. WHITE, CIRCUIT JUDGE, ET AL., RESPONDENTS.



Original petition for writs of mandamus and prohibition.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Pursuant to supervision and neglect petitions, a female minor was declared a ward of the circuit court of Cook County, juvenile division. Richard S. Laymon of the Department of Children and Family Services of the State of Illinois was appointed her guardian-administrator.

The female was found to be pregnant, and during the course of medical and psychiatric examinations, the Medical Certification Board of a Chicago hospital determined that she was "suicidal" and in its medical judgment believed it necessary to perform a therapeutic abortion in order to prevent the female from taking her own life. The guardian-administrator refused to permit such abortion.

Attorneys for the female minor petitioned the court for an "Order on the Guardian * * * to Permit an Abortion." After a lengthy evidentiary hearing which included testimony of reputed experts, stipulations and documentary evidence, the court ordered that the guardian "shall immediately and without delay, consent and arrange for a therapeutic abortion to be performed upon the person * * * by a physician licensed to practice medicine in the State of Illinois in a licensed medical facility."

This order was predicated upon two findings, namely: (1) that section 23-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 23-1(b)), which provides, "It shall be an affirmative defense to abortion that the abortion was performed by a physician licensed to practice medicine and surgery in all its branches and in a licensed hospital or other licensed medical facility because necessary for the preservation of the woman's life," included not only physical but psychiatric grounds as an affirmative defense; and (2) that the evidence presented was sufficient to establish that said female minor was in danger of death by reason of suicidal tendencies.

We granted leave to the State's Attorney of Cook County, who was not made a party to the aforementioned proceedings, to file this original action for writs of mandamus and prohibition directed to and requiring the circuit court judge to expunge the order for a therapeutic abortion and prohibiting the Department of Children and Family Services from acting pursuant thereto. While all of the normal criteria are not present, this court will entertain petitions, where necessary, for such extraordinary writs under its administrative powers and duties provided in the constitution. (People ex rel. Sears v. Romiti (1971), 50 Ill.2d 51, 54-55; People v. Sears (1971), 49 Ill.2d 14, 32-33; People ex rel. Continental Air Transport Co. v. Strouse (1969), 41 Ill.2d 567, 570.) After submission of this cause on January 26, 1972, we directed that the writs issue in accordance with the prayer and now express our reasons for such action.

The parties to this proceeding have not contested the constitutionality of section 23-1 of the Criminal Code. The issues, therefore, in this cause are: (1) whether, in construing section 23-1(b), psychiatric or mental grounds may be considered for a legal therapeutic abortion, and (2) if so construed, has the evidence established that an abortion was "necessary for the preservation of the woman's life.

The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. (People v. Hudson (1970), 46 Ill.2d 177; People ex rel. Cason v. Ring (1968), 41 Ill.2d 305; Electrical Contractors Ass'n of Chicago v. Illinois Building Authority (1966), 33 Ill.2d 587); and where, as in this case, there is no controlling precedent, the history, existing circumstances and contemporaneous conditions of the legislation are invaluable in ascertaining that intent. People ex rel. Moss v. Pate (1964), 30 Ill.2d 271; People ex rel. Joseph v. Pennsylvania R.R. Co. (1959), 18 Ill.2d 61; Scofield v. Board of Education (1952), 411 Ill. 11.

The legislative history of our abortion statutes antedating section 23-1 of the Criminal Code (Ill. Rev. Stat. 1961, ch. 38, par. 3; Rev.Stat. 1874, p. 348, div. I, par. 3; Laws of 1867, p. 89, secs. 1, 2, 3; Rev.Stat. 1845, p. 158, sec. 46) did not prohibit the performance of a therapeutic abortion for the preservation of a woman's life due to physical dangers. (Hatchard v. State (1891), 79 Wis. 357, 48 N.W. 380; see generally Perkins, Criminal Law (1969), pp. 145-49.) Section 23-1 is merely a recodification of the prior law with the additional requirement that it be performed by a licensed physician in a licensed hospital.

Respondents urge that in the light of advanced medical and psychiatric technology, grounds for a therapeutic abortion are, by implication and intendment, encompassed within section 23-1. Legislative history does not support this reasoning. Subsequent to the enactment of section 23-1, which became effective on January 1, 1962, there were introduced in the 76th General Assembly (1969) the following proposed revisions and amendments thereto: Senate Bill 603 — "* * * is likely to result in the serious permanent impairment of the physical health of the woman; or the serious permanent impairment of the mental health of the woman * * *" (tabled on third reading); House Bill 663 — "* * * is likely to result in the death of the woman, or the serious permanent impairment of the physical health of the woman, or the serious permanent impairment of the mental health of the woman * * *" (failed to pass); House Bill 1407 — "The continuance of the pregnancy would gravely endanger and impair the physical or mental health of the female * * *" (failed to pass: 91 to 38).

Additionally, similar legislation was introduced in the 77th General Assembly (1971) as follows: House Bill 043 — "The continuance of the pregnancy would gravely endanger and impair the physical or mental health of the female * * *" (tabled in Judiciary Committee); House Bill 3076 — "* * * if the abortion is necessary for the mental or physical well being of the woman * * *" (in Judiciary Committee).

As we see, there have been repeated attempts to have the legislature engraft the concept of mental or psychiatric grounds for a legal therapeutic abortion. These attempts indicate that section 23-1(b), as originally passed and now in force, was not intended to and does not encompass mental or psychiatric grounds. Otherwise, such revisions or amendments would have been unnecessary.

States which have chosen to permit mental and physical grounds as "necessary for the preservation of a woman's life" have done so by specifically incorporating "mental health" into their statutes. California — Cal. Penal Code Ann., sec. 274; Colorado — Colo. Rev. Stat. Ann., sec. 40-2-50, 53; Delaware — Del. Code Ann., tit. 24, secs. 1790-93; Kansas — Kan. Stat. Ann., sec. 21-3407; Maryland — Md. Ann. Code, art. 43, sec. 137; New Mexico — N.M. Stat. Ann., sec. 40A-5-1 to 5-3; Oregon — Ore. Rev. Stat., sec. 435.405-495; South Carolina — S.C. Code Ann., sec. 16-87 to 89; Virginia — Va. Code Ann., sec. 18.1-62 to 62.3.

Likewise, considering the fact that there were attempts to incorporate "mental impairments" into section 23-1(b), we find that the intent of the legislature was to prohibit such grounds as an affirmative defense to an abortion. We, therefore, cannot read into that statute by implication or intendment respondents' suggested construction which is in direct conflict with the legislative intent. Without any doubt we find that there is definitive legislative history and rational basis for excluding the action ...


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