Dr. Leon Phillip Belous was convicted in January 1967, after a jury trial, of abortion, in violation of section 274 of the Penal Code, and conspiracy to commit an abortion, in violation of section 182 of the Penal Code, both felonies. The court suspended proceedings, imposed a fine of $5,000, and placed Dr. Belous on probation for two years. He appeals from the order granting probation.

Dr. Belous is a physician and surgeon, licensed since 1931 to practice medicine in the State of California, and specializing in obstetrics and gynecology. He has been on the attending staff of the gynecology department of Cedars of Lebanon Hospital in Los Angeles since 1931, is a fellow of the Los Angeles Gynecology and Obstetrical Society, the American College of Obstetrics and Gynecology, and the Abdominal Surgical Society, and the Geriatric Society, and a member of the American Board of Obstetrics and Gynecology. He is on the Board of Directors of the. California Committee on Therapeutic Abortion, an organization which seeks to liberalize abortion laws. He is considered by his associates to be an eminent physician in his field.

The prosecution’s witnesses, a young woman and her husband, Cheryl and Clifton, testified to the following:

In 1966, Cheryl, then unmarried, believed she was pregnant. A family physician had given her pills which would induce menstruation if she were not pregnant, but the pills did not work. She and Clifton had sometime earlier seen Dr. Belous on television, advocating a change in the California abortion laws. They had never heard of Dr. Belous before. Clifton obtained the doctor’s phone number from the television station and phoned Dr. Belous; he explained the problem and that they both were “pretty disturbed,” and at their “wits’ end” and asked for Dr. Belous’ help. Dr. Belous told him there was nothing he could do, but Clifton “continued pleading,” and threatened that Cheryl would go to Tijuana for an abortion. Finally the doctor agreed to see them at his office.

Dr. Belous examined Cheryl at his Beverly Hills office and confirmed that she was possibly pregnant. Cheryl was otherwise in good health. The visit lasted about 45 minutes and was very emotional. Both Clifton and Cheryl pleaded for help, cried, insisted they were going to have an abortion ‘ ‘ one wav *958 or another. ’ ’ The doctor lectured them on the dangers of criminal abortions, and Tijuana abortions in particular, and suggested that they get married. He insisted he did not perform abortions. He refused to recommend anyone in Tijuana. Finally, in response to their pleadings, Dr. Belous gave them a piece of paper with a Chula Vista phone number. He told them an abortion would cost about $500. He gave Cheryl a prescription for some antibiotics and- instructed her to return for an examination.

Dr. Belous testified that he was very familiar with the abortion business in Tijuana. He had visited the clinics there to learn about conditions and knew that women who went to Tijuana were taking their lives in their hands. He met Karl Lairtus while in Tijuana and knew from personal observation that Lairtus, licensed to practice in Mexico but not in California, was performing skilled and safe abortions in Mexico. Lairtus wanted to obtain a California license, and sought out Belous’ help on a number of occasions. When Lairtus moved from Mexico to Chula Vista, he gave Dr. Belous his address and phone number. When Lairtus moved to Los Angeles, he gave the doctor a Hollywood address, and made it known to the doctor that he was performing abortions. It was Lairtus’ number that Belous gave to Cheryl and Clifton. Although he had given out Lairtus’ number before, in similar situations, where distraught pregnant women insisted they would do anything, Dr. Belous had no idea how many women actually went to Lairtus.

Cheryl and Clifton made arrangements with Lairtus, and went to the address which Lairtus gave them on the phone. After the abortion was performed, while Cheryl was resting, the police, having been advised by another woman that Lair-tus was performing abortions at that address, came to his apartment, followed another couple into the apartment and arrested Lairtus. They found two notebooks, containing women’s names, ages, dates of last menstruation, and physician’s names, including Dr. Belous’ name, which the police interpreted as the referring doctor with whom Lairtus was to split his fees. On the basis of this information, Dr. Belous was arrested at his office. Lairtus pleaded guilty. At Dr. Belous’ trial, he testified that, although not solicited, he sent Dr. Belous about $100 as a professional courtesy in about half the cases that he had performed abortions on Dr. Belous’ patients. Dr. Belous denied receiving any money from Lair-tus.

*959 The substance of Dr. Belous ’ defense was that he gave Lairtus’ phone number to Cheryl and Clifton only because he relieved that they would, in fact, do anything to terminate, the pregnancy, which might involve butchery in Tijuana or self-mutilation; that in face of their pleading and tears, he gave out the phone number of someone whom he knew to be a sompetent doctor, although unlicensed in this state. The doctor believed that if the young couple carried out their threats, Cheryls’ very life was in danger.

Section 274 of the Penal Code, when the conduct herein involved occurred, read: “Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five pears. ’ ’

The statute was substantially unchanged since it was originally enacted in 1850. 1 In 1967, the statute was amended and sections 25950 through 25954 (“Therapeutic Abortion Act”) added to the Health and Safety Code. The act extends the Lawful grounds for obtaining an abortion. 2 Section 274 is directed towards the abortionist. Under section 275 of the *960 Penal Code (also amended by the Therapeutic Abortion Act) a woman who solicits or submits to an abortion is punishabl by up to five years’ imprisonment; similarly, under sectioi 276, any person who solicits a woman to submit to an abortioi is punishable by up to five years ’ imprisonment.

We have concluded that the term “necessary to pre serve” in section 274 of the Penal Code is not susceptible of í construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements with out improperly infringing on fundamental constitutiona rights.

“The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids . . . “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” ’ (Lanzetta v. New Jersey, 306 U.S. 451, 453 [ 83 L.Ed. 888 , 890 59 S.Ct. 618 ]; see also Connally v. General Constr. Co., 269 U.S. 385, 391 [ 70 L.Ed. 322, 328 , 46 S.Ct. 126 ].) Such also is the law of the State of California. (People v. McCaughan, 49 Cal.2d 409, 414 [ 317 P.2d 974 ].)

“The required meaning, certainty and lack of ambiguity may appear on the face of the questioned statute or from any demonstrably established technical or common law meaning of the language in question. (People v. McCaughan, supra, 49 Cal.2d 409, 414 ; Lorenson v. Superior Court, 35 Cal.2d 49, 60 [ 216 P.2d 859 ].)” (In re Newbern, 53 Cal.2d 786, 792 [ 3 Cal.Rptr. 364 , 350 P.2d 116 ].) The requirement of certainty in legislation is greater where the criminal statute is a limitation on constitutional rights. (See Smith v. California (1959) 361 U.S. 147, 151 [ 4 L.Ed.2d 205, 210 , 80 S.Ct. 215 ].) On the other hand, mathematical certainty is not required; “some matter of degree” is involved in most penal statutes. (Nash v. United States (1913) 229 U.S. 373, 377 [ 57 L.Ed. 1232, 1235 , 33 S.Ct. 471 ].)

Dictionary definitions and judicial interpretations fail to provide a clear meaning for the words, “necessary” or “preserve.” There is, of course, no standard definition of “necessary to preserve,” and taking the words separately, no *961 sar meaning emerges. “Necessary” is defined as: “1. Es-ntial to a desirable or projected end or condition; not to be spensed with without loss, damage, inefficiency, or the like ; (Webster’s New International Dictionary (2d ed.), íabridged.) The courts have recognized that “ ‘necessary’ is not a fixed meaning, but is flexible and relative.” (Westphal v. Westphal, 122 Cal.App. 379, 382 [ 10 P.2d 119 ]; see also, City of Dayton v. Borchers (1967) 13 Ohio Misc. 273 132 N.E.2d 437, 441 ]; [“A necessary thing may supply a ide range of wants, from mere convenience to logical com-leteness.”].)

The definition of “preserve” is even less enlightening. It is jfined as: “1. To keep or save from injury or destruction; to' lard or defend from evil; to protect; save. 2. To keep in dstence or intact; ... To save from decomposition, . . . To maintain; to keep up; . . . (Webster’s New Interna-onal Dictionary, supra.) The meanings for “preserve” mge from the concept of maintaining the status quo — that , the woman’s condition of life at the time of pregnancy — to aintaining the biological or medical definition of “life”— íat is, as opposed to the biological or medical definition of death. ’ ’

Since abortion before quickening was not a crime at com-lou law (Perkins, Criminal Law (1967) 101; Means, The Law of New York Concerning Abortion and the Status of the oetus, 1664-1968: A Case of Cessation of Constitutionality 1968) 14 N.Y.L.F. 411, 419-422; Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L.C. & P.S. 84, 85) we cannot fly on common law meanings or common law referents (see Lorenson v. Superior Court, supra, 35 Cal.2d 49, 60 ; People v. Agnello, 259 Cal.App.2d 785, 790-791 [ 66 Cal.Rptr. 571 ]). 3 Various possible meanings of “necessary to preserve . . . fe” have been suggested. However, none of the proposed efinitions will sustain the statute.

Respondent asserts: “If medical science feels the bortio'n should be performed as it is necessary to preserve her life, then it may be performed; that is, unless it is performed xe patient will die. ’ ’

Our courts, however, have rejected an interpretation of *962 “necessary to preserve” which requires'certainty or imn diacy of death. (People v. Abarbanel, 239 Cal.App.2d 31 , 3 35 [ 48 Cal.Rptr. 336 ]; People v. Ballard, 218 Cal.App.2d 29 298 [ 32 Cal.Rptr. 233 ]; People v. Ballard, 167 Cal.App.2d 803, 807 [ 335 P.2d 204 ].) Justice Fourt, in People v. Ballar supra, 167 Cal.App.2d 803, 814 , stated: “Surely, the abortb statute (Pen. Code, § 274) does not mean by the words ‘ unk the same is necessary to preserve her life ’ that the peril to li be imminent. It ought to be enough that the dangerous cone tion ‘ be potentially present, even though its full developme might be delayed to a greater or less extent. Nor was it esse tial that the doctor should believe that the death of the p tient would be otherwise certain in order to justify him affording present relief.' [Citations.]” The above language was quoted in People v. Abarbanel, supra, 239 Cal.App.2d 31, 34 .

In People v. Ballard, supra, 167 Cal.App.2d 803 , 813-81 the evidence established that the woman was “extreme nervous . . . upset, had headaches, was unable to sleep, ax thought that she was pregnant. She was agitated, disturbe and had many problems.” (Italics .omitted.) In People Ballard, supra, 218 Cal.App.2d 295, 307 , it was establish! that at the time each of the women went to the defendai doctor she was in a “bad state of health” because of sel imposed abortive practices. And in People v. Abarbane supra, 239 Cal.App.2d 31 , the obstetrician performed tl abortion after receiving letters from two psychiatrists to. tl effect that abortion was indicated as necessary to save tl woman’s life from the “possibility” of suicide. In each ( the cases the conviction was reversed.

If the fact of ill health or the mere “possibility” of suicid is sufficient to meet the test of “necessary to preserve he life, ” it is clear that a showing of immediacy or certainty o death is not essential for a lawful abortion. Two other juri: dictions have also rejected an interpretation of “necessary t preserve” which would require certainty or immediacy c death. (State v. Dunklebarger (1928) 206 Iowa 971 [ 221 N.W. 592, 596 ]; State v. Hatch (1917) 138 Minn. 317 [ 164 N.W. 1017 ].)

After the decision in Ballard, the Legislature did no amend the statute to repudiate the rule suggested by that cas and to establish a definition requiring certainty of death. 4 *963 It would be anomalous to uphold a criminal statute against charge of vagueness by adopting a construction of the state rejected by the courts of this state as not reflecting legla- re intent unless there was a clear showing of a strong public tliey or legislative intent requiring adoption of the rejected nstruction. No such showing has been made with regard to e construction urged by respondent. '

Moreover, a definition requiring certainty of death would ork an invalid abridgment of the woman’s constitutional ghts. The rights involved in the instant case are the Oman’s rights to life and to choose whether to bear chil•en. 5 The woman’s right to life is involved because ehild-rth involyes risks of death. 6

The fundamental right of the woman to choose whether to jar children follows from the Supreme Court’s and this mrt’s repeated acknowledgment of.a “right of privacy” or liberty” in matters related to marriage, family, and sex. See, e.g., Griswold v. Connecticut, supra, 381 U.S. 479, 485, 486, 500 [ 14 L.Ed.2d 510, 515, 516, 524 , 85 S.Ct. 1678 ]; Loving Virginia (1967) 388 U.S. 1, 12 [ 18 L.Ed.2d 1010, 1018 , 87 S.Ct. 1817 ] [statute prohibiting interracial marriages, viola-ve of due process clause]; Skinner v. Oklahoma (1942) 16 U.S. 535, 536, 541 [ 86 L.Ed.2d 1655 , 1657, 1660, 62 S.Ct. 1110 ] [sterilization laws; marriage and procreation volve a “basic liberty”]’; Pierce v. Society of Sisters 1925) 268 U.S. 510, 534-535 [ 69 L.Ed. 1070, 1077-1078 , 45 S.Ct. 571 , 39 A.L.R. 468 ] [prohibition against nonpublic schools; same]; Meyer v. Nebraska (1923) 262 U.S. 390 ; 399-400 [ 67 L.Ed. 1042, 1045-1046 , 43 S.Ct. 625 , 29 A.L.R. 1446 ] nohibition against teaching children German language; same]; Perez v. Sharp, 32 Cal.2d 711, 715 [ 198 P.2d 17 ]; see also Custodio v. Bauer, 251 Cal.App.2d 303, 317-318 [ 59 Cal.Rptr. 463 ].) That such a right is not enumerated in either the nited States or California Constitutions is no impediment to íe existence of’ the right. (See, e.g., Carrington v. Rash *964 (1965) 380 U.S. 89, 96 [ 13 L.Ed.2d 675, 680 , 85 S.Ct. 77 [fundamental but nonenumerated right to vote]; Aptheker Secretary of State (1964) 378 U.S. 500, 505-506 [12 L.Ed.2 992, 996-997, 84 S.Ct. 1659 ], and Kent v. Dulles (1958) 3 U.S. 116, 125 [ 2 L.Ed.2d 1204, 1209 , 78 S.Ct. 1113 ] [right travel] ; Bolling v. Sharpe (1954) 347 U.S. 497, 500 [98 L.E 884, 887, 74 S.Ct. 693 ] [right to attend federal unsegregat schools] ; Otsuka v. Hite, 64 Cal.2d 596, 602 [ 51 Cal.Rptr. 28 ] 414 P.2d 412 ] [right to vote]; cf. Finot v. Pasadena Ci Board of Education, 250 Cal.App.2d 189, 199 [ 58 Cal.Rptr. 520 ].)- It is not surprising that none of the parties who ha filed briefs in this case have disputed the existence of tl fundamental right.

The critical issue is not whether such rights exist, b whether the state has a compelling interest in the regulath of a subject which is within the police powers of the sta (Shapiro v. Thompson (1969) 394 U.S. 618, 634 [ 22 L.E.2d 600, 615 , 89 S.Ct. 1322 ]; Sherbert v. Verner (1963 374 U.S. 398, 403 [ 10 L.Ed.2d 965, 969 , 83 S.Ct. 1790 ] whether the regulation is “necessary ... to the accomplis ment of a permissible state policy” (McLaughlin v. Florid (1964) 379 U.S. 184, 196 [ 13 L.Ed.2d 222, 230 , 85 S.Ct. 283 see also, N.A.A.C.P. v. Button, 371 U.S. 415, 438 [ 9 L.Ed.2d 405, 421 , 83 S.Ct, 328 ]; Bates v. Little Rock (1960) 361 U. 516, 527 [ 4 L.Ed.2d 480, 488 , 80 S.Ct. 412 ] ; Huntley v. Public Utilities Com., 69 Cal.2d 67, 74 [ 69 Cal.Rptr. 605 , 442 P.2d 685 ]; Vogel v. County of Los Angeles, 68 Cal.2d 18, 21 [ 6 Cal.Rptr. 409 , 434 P.2d 961 ] ; People v. Woody, 61 Cal.2d 71 718 [ 40 Cal.Rptr. 69 , 394 P.2d 813 ]), and whether legislatic impinging on constitutionally protected areas is narrow drawn and not of “unlimited and indiscriminate sweep (Shelton v. Tucker (1960) 364 U.S. 479, 490 [ 5 L.Ed.2d 23 238, 81 S.Ct. 247 ]; see also, Cantwell v. Connecticut (1940 310 U.S. 296, 308 [ 84 L.Ed. 1213, 1220 , 60 S.Ct. 900 , 12 A.L.R. 1352 ]; In re Berry, 68 Cal.2d 137, 151 [ 65 Cal.Rptr. 273 , 436 P.2d 273 ] ; In re Hoffman, 67 Cal.2d 845, 853-854 [ 6 Cal.Rptr. 97 , 434 P.2d 353 ]).

It is possible that the definition suggested by responc ent, requiring that death be certain, was that intended by tl Legislature when the first abortion law was adopted in 185 and that, in the light of the then existing medical and surg cal science, the great and direct interference with a woman constitutional rights was warranted by considerations of th woman’s health. When California’s first anti-abortion statui *965 ras enacted, any surgical procedure which entered a body avity was extremely dangerous. Surgeons did not know how o control infection, and mortality was high. (Haagensen & jloyd, A Hundred Years of Medicine (1943) p. 19.) In 1867 'oseph Lister first published his findings on antiseptic surgery (id., at pp. 241-242), but even in 1883 the techniques he leveloped weré condemned (id., at p. 245), and as late as 1895 ?ere not well understood or properly appliéd by even , leaders f the medical profession. (Id., at p.' 246; see also, H. Robb 1895) Aseptic Surgical Technique.)

Although development was slow, techniques of antisepsis md asepsis became major general advances in surgery at and -fter the turn of the century. In due course safe procedures rere developed for specific operations-. Curettage, used for .bortion in the first trimester, became a safe, accepted and outinely employed medical technique, especially after antibi-tics were developed in the early 1940’s. (Douglas, Toxic Effects of the Welch Bacillus in Postabortal Infections 1956) 56 N.Y.State J.Med. 3673.) It is now safer for a roman to Have a hospital therapeutic abortion during the first rimester than'to bear a child. 7

Although abortions early in pregnancy, and properly per-ormed present minimal danger to the woman, criminal 8 abor-ions are “the most common single cause of maternal deaths a California.” (Fox, Abortion Deaths in California (1967) *966 98 Am.J.Obst. & Gynee. 645, 650.) In California, it is est mated that 35,000 to 100,000 such abortions occur each yea (Fox, supra, at p. 645.)

The incidence of severe infection from criminal abortion very much greater than the incidence of death. The L( Angeles County Hospital alone, for example, in 1961 admittc over 3,500 patients treated for such abortions. (Kistner, Medical Indications for Contraception: Changing Viewpoints (editorial) (1965) 25 Obst. & Gynec. 285, 286.) Possibly moi significant than the mere incidence of infection caused b criminal abortions is the result of such infection. “Induce Illegal Abortion ... is one of the important causes of subs quent infertility and pelvic disease.” (Kleegman & Kaufman, Infertility in Women (1966) p. 301; see also Curtis Huffman, Gynecology (6th ed. 1950) pp. 565, 566.) 9

Amici for appellant, 178 deans of medical schools, includin the deans of all California medical schools, chairmen of med cal school departments, and professors of medical school state: “These recorded facts bring one face-to-face with tb hard, shocking — almost brutal — reality that our statute d< signed in 1850 to protect women from serious risks to life an health has in modem times become a scourge. ’ ’ 10

*967 Although we may assume that the law was valid when first acted, the validity of the law in-1850 does not resolve the ue of whether the law is constitutionally valid today. Compare, e.g., Gray v. Sanders (1963) 372 U.S. 368, 381 [9 Ed.2d 821, 830, 83 S.Ct. 801 ], with South v. Peters (1950) 9 U.S. 276, 277 [ 94 L.Ed. 834 , 836, 70 S.Ct. 641 ]; Baker v. arr (1962) 369 U.S. 186, 237 [ 7 L.Ed.2d 663, 697 , 82 S.Ct. 1 ], with Colgrove v. Green (1946) 328 U.S. 549, 556 [90 Ed. 1432, 1435, 66 S.Ct. 1198 ] ; Brown v. Board of Education (1954) 347 U.S. 483, 495 [ 98 L.Ed. 873, 881 , 74 S.Ct. 686 , A.L.R.2d 1180], with Plessy v. Ferguson (1896) 163 U.S. 7 , 550-551 [ 41 L.Ed. 256, 260-261 , 16 S.Ct. 1138 ].)

Constitutional concepts are not static. Our United. States ipreme Court said, regarding the equal protection clause of e Fourteenth Amendment: “We agree, of course, with Mr. istice Holmes that the Due Process Clause of the Fourteenth mendment ‘does not enact Mr. Herbert Spencer’s Social ;atics.’ [Citation.] Likewise, the Equal Protection Clause is )t shackled to the political theory of a particular era. In stermining what lines are unconstitutionally discriminatory, e have never been confined to historic notions of equality, i.y more than we have restricted due process to a fixed cata-gue of what was at a given time.deemed to be the limits of mdamental rights. ...” (Harper v. Virginia Board of elections (1966) 383 U.S. 663, 669 [ 16 L.Ed.2d 169, 173 , 86 Ct. 1079]; see also, Perez v. Sharp, supra, 32 Cal.2d 711, 27 ; Galyon v. Municipal Court, 229 Cal.App.2d 667 , 671-672 10 Cal.Rptr. 446 ], and cases cited therein [“[A] statute did when enacted may become invalid by change in the con-itions to which it is applied.”]. See also, Means, supra, 14 .Y.L.F. 411, 514-515.)

In the light of modern medical surgical practice, the ’eat and direct infringement of constitutional rights which ould result from a definition requiring certainty of death ay not be justified on the basis of considerations of the Oman’s health where, as here, abortion is sought during the rst trimester.

It is next urged that the state' has a compelling interest in íe protection of the embryo and fetus 11 and that such inter *968 est warrants tbe limitation on the woman’s eonstitutioi rights. Reliance is placed upon several statutes and coi rules which assertedly show that the embryo or fetus is equl alent to a bom ehild. However, all of the statutes and ruf relied upon require a live birth or reflect the interest of parents. 12

' In any event, there áre major and decisive areas where, embryo and fetus are not treated as equivalent to the bo] child. Probably the most important is reflected by the stati *969 fore us. The intentional destruction of the born child is urder or manslaughter. The intentional destruction of the ibryo or fetus is never treated as murder, andson]y rarely as ansla.ughter but rather as the lesser offense of - abortion. Perkins, Criminal Law, supra, p. 108; Means, supra, 14 Y.L.F. at p. 445.) 13

Furthermore, the law has always recognized that the preg-imt woman’s right to life takes precedence over any interest e state may have in the unborn. The California abortion atutes, as do the abortion laws of all 51 United States juris-.ctions, make an exception in favor of the life of the prospec-ve mother. (See Stern, Abortion: Reform and the Law, supra, 59 J.Crim.L.C. & P.S. 84, 86-87; George, Current Abortion Laws: Proposals & Movements for Reform (1965) 17 W.Res.L.Rev. 366, 375.) Although there may be doubts as to hether the state’s interest may ever justify requiring a ornan to risk death, it is clear that the state could not forbid woman to procure an abortion where, to a medical certainty, íe result of childbirth would be death. We are also satisfied lat the state may not require that degree of risk involved in ispondent’s definition, which would prohibit an abortion, here death from childbirth although not medically certain, ould be substantially certain or more likely than not. .ccordingly, the definition of the statute suggested by re? jondent must be rejected as an invalid infringement upon íe woman’s constitutional rights.

Another definition of the term “necessary to- preserve” is iggested by People v. Abarbanel, supra, 239 Cal.App.2d 31, 2, 34 , where the court held that an abortion was not unlawal where the obstetrician performed the abortion based on íe “possibility” of suicide. Abarbanel might be understood 3 meaning that “necessary to preserve” refers to a póssibily of death different from or greater than the ordinary risk E childbirth. To so interpret “necessary to preserve”- would lean that in nearly every case, if not all, a woman who dshed an abortion could have one. A woman who is denied a esired lawful abortion and forced to continue an unwanted regnaney would seem to face a greater risk of death, because f psychological factors, than the average woman, because the verage includes all those women who wish to bear the child *970 to term. The psychological factor alone, which under Abo bánel is a proper consideration, would seem to be decish Such a construction of the statute permitting voluntary abc tions would render the statute virtually meaningless. Mor over to determine the right to an abortion solely on the bac of the dangers of childbirth without regard to the relatr dangers of the abortion would be contrary to good medic practice.

Nor can the statute be made certain by reading it “substantially or reasonably” necessary to. preserve the li: of the mother. In the present context those terms are n sufficiently precise and would be subject to such differei interpretations as to add little or nothing to “necessary. Thus, many people may feel that an abortion is reasonably ( substantially necessary to preserve life where the risk of deat is double or triple the ordinary risk in childbirth. Others ma believe that anything which increases the possibility of deat is a substantial risk which is not to be'undertaken in tl absence of countervailing considerations, so that “reasonabi necessary” or “substantially necessary” becomes as destruí tive of the statute as “possibility of death.” On the othc hand, there may be those who feel that there is no reasonabi or substantial necessity until it is more likely than not the the pregnant' woman will not survive childbirth. Although i other contexts the implication of words such as “reasonably and “substantially” may add certainty and avoid other du process objections, in, the instant situation the implication o such words would merely increase the uncertainty.

There is one suggested test which is based on policy underlying the statute and which would serve to mak the statute certain. The test is probably in accord with th legislative intent at the time the statute was adopted. Th Legislature may have intended in adopting the statute tha abortion was permitted when the risk of death due to th abortion was less than the risk of death in childbirth and tha otherwise abortion should be denied. As we have seen, at thi time of the adoption of the statute abortion was a highb dangerous procedure, and under the relative safety test abor tion would be permissible only where childbirth would be ever more dangerous. In light of the test and the then existing medical practice, the question whether abortion should b< limited to protect the embryo or fetus may have been immaterial because'any such interest would be effectuated by limiting *971 ■ortions to the rare cases where they were safer than child-■rth.

The suggested test would involve an application of medical inciples. Medical science may be able to tell us the proper Method to treat a patient to minimize the risk of death, but' ithout- resort to matters outside medical competence, it nnot tell us the circumstances in which the safest treatment ould be rejected and a moré dangerous treatment followed order to protect an embryo or fetus.

The new Therapeutic Abortion Act (Health & Saf. Code, i 25950-25954), has adopted a test analogous to the suggested ie. Under the new statute, abortion is permissible during the ■st 20 weeks of pregnancy by a licensed physician in an ¡credited hospital (Health & Saf. Code, §§25951, 25953)- if is determined under prescribed procedures either that There is substantial risk that continuance of the pregnancy ould gravely impair the physical or mental health of the other” (Health & Saf. Code, § 25951, subd. (c) (1)), or lat “The pregnancy resulted from rape or.incest.” (Health Saf. Code, §25951, subd. (e) (2).) Mental health iñ-udes mental illness to the extent that the woman would be mgerous to herself.. (Health & Saf. Code, § 25954.) By limit-, Lg the abortion to- the first 20 weeks, the Legislature has tken into account the danger to the mother of- the later abor-on and, by requiring the abortion to be performed by' a censed physician in' an accredited hospital, has recognized Le danger to the mother of other procedures. The further fiteria for determining whether an abortion is permissible is ie pregnant woman’s physical and mental health. Thus, the ist established is - a medical one, whether the pregnant Oman’s physical and' mental health will be furthered by bortion or by bearing the child to term, and the assessment oes not involve considerations beyond medical competence, 'here is. nothing to indicate that in adopting the Therapeutic .bortion Act the Legislature was asserting an interest in the mbryo.

Although the suggested construction of former section 274, íaking abortion lawful where it is safer than childbirth and nlawful where abortion is more dangerous, may have been in eeord with legislative intent, the statute may not be upheld gainst a claim of vagueness on the basis of such a construe-Lon. The language of the statute, “unless the same is neces-ary to preserve her life,” does not suggest a relative safety est, and no ease interpreting the statute has suggested, that *972 the statute be so construed. None of the parties or numeren amici who have filed briefs in the instant case suggest that tl statute applies a relative safety test; to the contrary, the pos tion of the parties and amici, including numerous lawyer doctors, educators, clergymen and laymen, implies that tl statute does not apply that standard. Thus, those claiming tl statute is invalid urge that the only valid standard would be relative safety test and that the statute fails to adopt Such test, and those urging the validity of the statute either sta or imply that the standard applied is more restrictive. In tl circumstances, we are satisfied that the statute may not l construed to adopt the relative safety test as against a elah of vagueness, because the language does not suggest that te¡ and because of the practical evidence before us that men c “common” intelligence, indeed of uncommon intelligenc have not guessed at this meaning. 14

The problem caused by the vagueness of the statú.1 is accentuated because under the statute the doctor is, i effect, delegated the duty to determine whether a pregnai woman has the. right to an abortion and the physician acts e his peril if he determines that the woman is entitled to a abortion. He is subject to prosecution for a felony and 1 deprivation of his right to practice medicine (Bus. & Pro: Code, §2377) if his decision is wrong. Bather than bein impartial, the physician has a “direct, personal, substantia pecuniary interest in reaching a conclusion” that the woma should not have an abortion. The delegation of decisior making power to a directly involved individual violates th *973 irteenth Amendment. (Tumey v. Ohio (1927) 273 U.S. 510 , [ 71 L.Ed. 749, 754 , 47 S.Ct. 437 , 50 A.L.R. 1243 ]; see also te Board of Dry Gleaners v. Thrift-D-Lux Cleaners, Inc., Cal.2d 436, 448 [ 254 P.2d 29 ] [“ [T]he statute assumes to fer legislative authority upon those who are directly inter-id in the operation of the regulatory rule. . . .”]; Bluenthal v. Board of Medical Examiners, 57 Cal.2d 228 , 235 Cal.Rptr. 501 , 368 P.2d 101 ].)

"he inevitable effect of such delegation may be to deprive a nan of an abortion when under any definition of section : of the Penal Code, she would be entitled to such an opera-1, because the state, in delegating the power to decide when abortion is necessary, has skewed the penalties in one dition: no criminal penalties are imposed where the doctor uses to perform a necessary operation, even if the woman >uld in fact die because the operation was not performed, ihe pressures oh a physician to decide not to perform an ¡olutely necessary abortion are,' under section 274 of the lal Code, enormous, and because section 274 authorizes— 1 requires — the doctor to decide, at his peril, whether an irtion is necessary, a woman whose life is at stake may be effectively condemned to death as if the law flatly prohibit all abortions.

To some extent the Therapeutic Abortion Act reduces these issures. The act specifically authorizes an abortion by a ;nsed physician in an accredited hospital where the.abor-n is approved, in advance by a committee of the medical ff of the hospital, applying medical standards. (Health & L Code, §25951.) At least in eases where there has been íerence to. the procedural requirements of the statute, ysicians may not be held criminally responsible, and a jury y not subsequently determine that the abortion was not thorized by statute.

We conclude that the validity of section 274 of the nal Code before amendment cannot be sustained. 15

Since section 274 is invalid, Dr. Belous’ conviction for vio-ion of section 182 of the Penal Code, conspiracy to commit *974 abortion, must likewise fall. The judgment is reversed w directions to the trial court to dismiss the indictment.

Stats. 1850, ch. 99, §45, at p. 233: “ [Ejvery person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the State' Prison for a term not less than two years, nor more than five years: Provided, that no physician shall be affected by the last clause of this section,' who, in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.”

Penal Code, section 274, as amended reads: “Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, 'except as provided in the Therapeutic Abortion Act . . . of the Health and Safety Code, is punishable by imprisonment in the state prison . . . .” (Stats. 1967, ch. 327, § 3, at p. 1523; italics added.)

The Therapeutic Abortion Act (Health &.Saf. Code, §§ 25950-25954) authorizes abortions “only” if the abortion takes place in an accredited hospital (§ 25951, subd. (a)); the abortion is approved by a hospital staff committee consisting of at least three licensed physicians and surgeons (§ 25951, subd. (b)) ; and there is “substantial risk that continuance of the pregnancy would gravely impair the physical, or mental health of the mother” (§ 25951, subd. (e)(1)); the pregnancy resulted from rape or incest (§ 25951, subd. (e) (2)); or the woman is under 15 years of age (§ 25952, subd. (e)).

Compare United States v. Harriss (1954) 347 U.S. 612, 634 [ 98 L.Ed. 89 , 1005, 74 S.Ct. 808 ] (dissenting opinion) : “Whoever kidnaps, steals, ills, or commits similar acts of violence upon another is hound to know aat he is inviting retribution by society, and many of the statutes which efine these long-established crimes are traditionally and perhaps neces-arily vague. ’ ’

The definitions suggested by the two Ballard cases and by Abarbane will be discussed later in this opinion.

Dr. Belous’ standing to raise this right is unchallenged. (Cf. Griswold Connecticut (1965) 381 U.S. 479, 481 [ 14 L.Ed.2d 510, 512 , 85 S.Ct. 678 ]; Barrows v. Jackson (1953) 346 U.S. 249, 257 [ 97 L.Ed. 1586, 595 , 73 S.Ct. 1031 ]; Parrish v. Civil Service Com., 66 Cal.2d 260 , 264 57 Cal.Rptr. 623 , 425 P.2d 223 ].)

E.g., The maternal death rate in 1966 was 0.5 per 100,000 population id 29.1 .per 100,000 births. (Statistical Abstract of the United States 1968) table 73, at p. 58, table 68, at p. 55.) In California in 1966 the aternal death rate was 2.1 per i0,000 live births (California Statistical b'straet (1968) table E-3, at p. 67.) As to a particular pregnant woman íe risk of death may be greater or lesser.

C. Tietze & H. Lehfeldt, Legal Abortion in Eastern Europe (April 961) 175 J.A.M.A. 1149, 1152; see also V. Kolblova, Legal Abortion in Czechoslovakia (April 1966) 196 J.A.M.A. 371; K.H. Mehland, Comatting Illegal Abortion in the Socialist Countries of Europe (1966) 13 World Med.J. 84. There are, of course, no comparable data in the United Itates. However, in California from November 1967 through September 968, 3,775 therapeutic abortions were reported without a maternal eath. (See Annual Beport on the Implementation of the Therapeutic Lbortion Act, Department of Public Health, Bureau of Maternal and Jhild Health (January 1969), table 1.)

The only data contrary to the conclusions above is provided by the mieus for respondent, relying on Swedish data- showing that maternal lortality from abortion is slightly higher than maternal mortality from :iving birth. The Swedish figures are, however, explainable by the fact hat abortions in Sweden are often performed during late pregnancy. See Tietze & Lehfeldt, supra, 175 J.A.M.A. 1149, 1152 (e.g., in 1949, 5 percent of Swedish abortions were performed after the first trimester); loffmeyer, Medical Aspects of the Danish’ Legislation on Abortions

“The phrases "criminal abortion” and "illegal abortion” are used >y the medical profession — and by legal commentators — to encompass all portions obtained other than from a physician in an accepted surgical nvironment. Any use of the phrase "criminal abortion” or "illegal .bortion” in this opinion merely adopts the common phraseology; no egal conclusion is intended.

There is considerable literature describing the experience of varioi hospitals with infected abortion. Hospital experience, however, can t assumed to be only the tip of the iceberg. Many badly infected wome will be ti’eated at home or in a doctor’s office. (Reid, Assessment and Management of the Seriously Ill Patient Following Abortion (March 1967) 199 J.A.M.A. p. 805.) See, for hospital data, Goodno, Cushner Molumphey, Management of Infected Abortion (1963) 85 Am.J.Obst. Gynec. 16 [Baltimore City Hospitals]; Knapp, Platt and Douglas, Sept. Abortion (1960) 15 Obst. & Gynec. 344 [The New York Hospital] Moritz & Thompson, Septic Abortion (1966) 95 Am.J.Obst. & Gynec. 4 [Miami Valley Hospital, Dayton, Ohio]; Stevenson & Yang, Septic Abortion With Shock (1962) 83 Am.J.Obst. & Gynec. 1229 [Detroit Receiving Hospital]; Studdiford & Douglas, Placental Bacteremia: A Significant Finding in Septic Abortion Accompanied by Vascular Collapse (1956 71 Am.J.Obst. & Gynec. 842 [Bellevue Hospital, New York].)

One of the amici in support of respondent agrees: ‘ ‘ There is a sut stantial risk that abortion performed by persons unauthorized to praetic surgery, carried out in unregulated places, will bring injury or even deat to the mother. ’ ’

Authorities recognizing and discussing the tragic health problei created by illegal abortions are legion. (See, e.g., Bates, The Abortion Mill: An Institutional Study (1954) 45 J.Crim.L.C. & P.S. 157; Eastman, Expectant Motherhood (3d ed. 1957) 106 et seq.; Gold, Erhardt Jacobziner & Nelson, Therapeutic Abortions in New York City: A 20 Year Review (1965) 55 Am.J.Pub.Health 964, 970-971; Guttmacher (ed 1967) The Case for Legalized Abortion Now; Lader (1966) Abortion Leavy & Kummer, Criminal Abortion Human Hardship and Unyielding Laws (1962) 35 So.Cal.L.Rev. 123; Lucas, Federal Constitutional Limita *967 tions on the Enforcement and Administration of State Abortion Statutes 1968) 46 N.C.L.Rev. 730; Niswander, Medical Abortion Practices in the United States (1965) 17 W.Res.L.Rev. 403.)

LIt lias been pointed out that “embryo” is more accurately descrip-ve than “fetus” in the instant case. Webster’s New International ietionary, supra,' states: “.... In mammals . . .' embryo is applied *968 only to early stages passed within the mother's body; later (in hum| embryology, usually after the third month of development) the'young called a fetus. ...” (Italics in original.)

Statutes classifying the unborn child as the same as the bom ch: require that the child be bom alive for the provisions to apply. (E.; Civ. Code, § 29 [“A child conceived, but not yet bom, is to be deeml an' existing person, so far as may be necessary for its interests in t| event of its subsequent birth; . . .”]; Prob. Code, § 250 [‘‘A po: humous child is considered as living at the death of the parent.”]; Pr Code,- § 255 [An illegitimate child is the heir of his mother, whether bo| or conceived.”]:)

Similarly, cases holding that a child can recover for injuries cau& before his birth require that the ehild be born alive. The interest p: teeted is that of the child; and the right attaches, not to the embryo-fetus, but to the living child. (Scott v. McPheeters, 33 Cal.App.2d 62 ] 637 [ 92 P.2d 678 , 93 P.2d 562 ] [child injured at birth can bring aetii for injuries]; see also, Carroll v. Skloff (1964) 415 Pa. 47 [ 202 A.2d 11 ]; Tomlin v. Laws (1922) 301 Ill. 616 [ 134 N.E. 24, 25 ]; Prosser, La. of Torts (3d ed. 1964) at p. 356 [‘‘The ehild, provided that he is bo: alive, is permitted to maintain an action. . . .”].)

Where the embryo or fetus is allowed to asserts rights before birth is the prospective mother or parents who are bringing the action; thi| it is their interest that the law protects. (Kyne v. Kyne, 38 Cal.App.2d 122, 127-128 [ 100 P.2d 806 ] [action on behalf -of unborn child f-support and to establish paternity]; People v. Sianes, 134 Cal.App. 35, 357-358 [ 25 P.2d 487 ] [Criminal action for nonsupport against fatlu] of unborn child]; People v. Yates, 114 Cal.App.Supp. 782 , 786 [298 961] [same].) Similarly, in those jurisdictions which recognize a eau: of action for the loss of an unborn child, it is the parents’ ‘‘distressin wrong in the loss of a ehild” that the law has recognized. (Prosse supra, § 56, at p. 357; Torigian v. Watertown News Co. (1967) 352 Mass 446, 448 [ 225 N.E.2d 926 ].)

In a case involving a pregnant woman who refused a blood transfusioi in ordering the transfusion the court made clear that it was eoneerne with the woman, rather than the fetus: . .'Mrs. Jones wanted 1 live.” (Application of President & Directors of Georgetown College Inc. (D.C. Cir. 1964) 331 F.2d 1000, 1009 [ 118 App.D.C. 80 , 9 A.L.E.3 1367], cert. denied, 377 U.S. 978 [ 12 L.Ed.2d 746 , 84 S.Ct. 1887 ]; bu see, Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson (1964 42 N.J. 421 [ 201 A.2d 537, 538 ], cert. denied, 377 U.S. 985 [12 L.Ed.2 1032, 84 S.Ct. 1894 ]; suggesting that an 8-month pregnant woman coul be required to have blood transfusions to protect the unborn child.)

Although sections 3705 and 3706 of the Penal Code, which provide fo suspending the. execution of a pregnant woman, reflect an interest in thi unborn ehild, the sections do not affect any other significant privat interest and thus furnish no basis to evaluate the interest protected or t( conclude that the embryo or fetus is equivalent to a born child.

One case has held that, for purposes of the manslaughter and murder tatutes, human life may exist where childbirth has commenced but has ot been fully completed. (People v. Chavez, 77 Cal.App.2d 621, 624, 626 , 176 P.2d 92 ].)

The practical aspects of the need to guess at the meaning of th abortion statute is shown by Packer & Gampell, Therapeutic Abortion A Problem in Law and Medicine (1959) 11 Stan.L.Rev. 417. A quei tionnaire survey directed to 29 San Francisco Bay Area and Los Angelí hospitals (id., at p. 423) based on hypothetical cases involving pregnar women seeking abortions yielded the following results (id., at p. 444)

Author’s Evaluation Hospital Would Case of Legality of Perform Abortion No. Abortion Tes N

It has been urged that the Therapeutic Abortion Act is uneonsti-ional because it contains uncertainties similar to those in the repealed tute, because it infringes on the woman’s right to choose whether to ir children, and because the act does not expressly permit an abortion ere there is a likelihood that a deformed child will be bom. Since the ; was adopted after the abortion in the instant ease, we do not reach > issue of its validity.