Two other jurisdictions have also rejected an interpretation of "necessary to preserve" which would require certainty or immediacy of 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 not amend the statute to repudiate the rule suggested by that case and to establish a definition requiring certainty of death.
Nor was it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief." ( State v. Dunklebarger, 206 Iowa 971 [ 221 N.W. 592, 596]; see also Rex v. Bourne, 1 K.B. 687 (1938); Commonwealth v. Wheeler, 315 Mass. 394 [ 53 N.E.2d 4]; 23 So.Cal.L.Rev. 523.) [1b] In State v. Powers (1929), 155 Wn. 63, 67 [ 283 P. 439, 440], the court satisfied itself with an interpretation of "necessity to save life" by stating, "If the appellant in performing the operation did something which was recognized and approved by those reasonably skilled in his profession practicing in the same community . . . then it cannot be said that the operation was not necessary to preserve the life of the patient."
X. The "denial of equal protection" argument is predicated on our decisions interpreting this statute. State v. Dunklebarger, 206 Iowa 971, 974, 221 N.W. 592, 594 states: "* * * It follows also that, if a regular physician does make an examination, and does form an opinion, and does act upon it, he is entitled to the presumption of correct judgment and good faith, until the contrary be proven.
Nor [is] it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief." State v. Dunklebarger, 206 Iowa 971, 221 N.W. 592, 596 (1928). Compare Rex v. Bourne, supra, which should not be regarded as a very worthwhile precedent.
It was shown by uncontradicted evidence that on December 2, 1948, the prosecutrix was in very good health, and such evidence, in view of the presumption "that a pregnant woman would give birth to a child naturally and survive afterwards," was, as we held in State v. Ausplund, 86 Or. 121, 127, 167 P. 1019, sufficient to take the case to the jury on this point. The decisions cited by the defendant are not in conflict with this holding: State v. Dunklebarger, 206 Ia 971, 221 N.W. 592; State v. Shoemaker, 157 Ia 176, 138 N.W. 381; State v. Aiken, 109 Ia 643, 80 N.W. 1073. It is true that in the Dunklebarger case the court held that testimony of the prosecutrix that she was in good health was not sufficient to sustain the state's burden of proof. But there the doctor who performed the operation, and who was not the defendant, testified as to his diagnosis and that the operation was necessary to preserve the life of the prosecutrix, and the Iowa court held that the diagnosis of a regular physician could not be negatived by the kind of testimony given by the prosecutrix.
Being in regular contact with Marion they were competent to give an opinion based upon observation. Such evidence was introduced in State v. Rowley, supra, State v. Dunklebarger, 206 Iowa 971, 221 N.W. 592; State v. Sonner, 253 Mo. 440, 161 S.W. 723; State v. Smith, 336 Mo. 126, 76 S.W.2d 1077; State v. Montifoire, 95 Vt. 508, 116 A. 77; 1 C.J.S., Abortion, 338; Reininghaus v. Merchants Life Assn., 116 Iowa 364, 89 N.W. 1113. We hold there was no error in the court's ruling.