A.  Abortion Procedures

1.   Abortion:  Abortion is defined as “any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing live birth.”[1]

2.    Right to Abortion:  The state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or after viability when the abortion is necessary to protect the life or health of the woman.[2]

3.    Risk to Life or Health:  An abortion is legally authorized at any period of gestation where the pregnancy poses a risk to the life or health of the pregnant woman.[3]

4.    Fetus Not Viable:  An abortion is legally authorized regardless of gestational age where the fetus is not viable.[4]

5.    Viability:  Viability is defined under California law as “the point in a pregnancy when, in the good faith medical judgment of a physician, on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.”[5]

6.    Pregnancy:  “Pregnancy” is defined as “the human reproductive process, beginning with the implantation of an embryo.”[6]


B.   Federal and State Statutes Governing Specific Acts and/or Procedures

1.   Partial-Birth Abortion:  The Partial-Birth Abortion Ban Act of 2003 (“PBA”) is a federal law criminalizing “partial-birth abortion.”[7]  The PBA was upheld by the United States Supreme Court in 2007.[8]

a.    Definition of Prohibited Act:  “Partial-birth abortion” is defined as an abortion, in which the person performing the abortion:

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus;  and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.[9]

b.   Life Exception:  The Act states that the statute does not apply to partial-birth abortion “that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life endangering physical condition caused by or arising from the pregnancy itself.”[10]  The statute does not contain a health exception.

c.    Living Fetus:  The Act proscribes the procedure with respect to a “living fetus.”  The Act does not apply where fetal demise has occurred before “the entire fetal head… or any part of the fetal trunk past the naval is outside the body of the mother.”[11]

d.   Criminal Penalties:  The Act imposes a criminal penalty for a physician who “knowingly performs a partial-birth abortion and thereby kills a human fetus” with a fine and/or imprisonment not more than two years.[12]

e.    Civil Action:  The Act authorizes a civil action by the “father of the fetus,” if married to the mother at the time of the procedure, and by the “maternal grandparents of the fetus,” if she is under the age of eighteen.[13]  The plaintiff may claim damages for psychological and physical injuries suffered as a result of the procedure as well as statutory damages.[14]  The “father” and “maternal grandparents” may not sue if they consented to the abortion.[15]


2.    “Born Alive” or “Rights of an Infant Prematurely Expelled During an Abortion” 

a.    Definition of “Live Birth”:  “Live birth” is defined as “the complete expulsion or extraction from its mother of a product of conception (irrespective of the duration of pregnancy) which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.”[16]

b.    Treatment:  An infant prematurely “born alive” in the course of an abortion has the same rights to medical treatment as an infant of similar medical status prematurely born spontaneously. [17]

[1]   Cal. Health & Safety Code § 123464(a) (2011).

[2]   Id. §§ 123462, 123468.

[3]   Id.

[4]   Id.

[5]   Id. § 123464(d).

[6]   Id. § 123464(b).

[7]   18 U.S.C. § 1531 (2011). The term “Partial-Birth Abortion” is a statutorily constructed term to describe the banned procedure.  “Partial-Birth Abortion” is a term not recognized in peer reviewed literature or medical textbooks, other than in reference to the Partial-Birth Abortion Ban and similarly named state statutes.

[8]   Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the Partial Birth Abortion Ban as constitutional).

[9]   18 U.S.C. § 1531(b) (2011).

[10]   Id. § 1531(a).

[11]   Id. § 1531(b)(1)(A).

[12]   Id. § 1531(a).

[13]   Id. § 1531(c)(1).

[14]   Id. § 1531(c)(2).

[15]   Id. § 1531(c)(1).

[16]   Cal. Code Regs. tit. 17, § 915 (2011).  “Born alive” is similarly defined under the Federal Born Alive Infant Protection Act, 1 U.S.C. § 8 (2011).

[17]   Cal. Health & Safety Code § 123435 (2011).