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Engrossed Version Senate Bill 533 History

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SB533 sub1 eng
ENGROSSED

COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 533

(By Senators Prezioso, Unger, Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Kessler, Love, McKenzie, Minard, Minear, Oliverio, Plymale, Sharpe, Sprouse, Tomblin, Mr. President, Weeks, White and Yoder)

____________

[Originating in the Committee on Health and Human Resources;

reported March 24, 2005.]

_____________


A BILL to amend and reenact §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and §16-2F-9 of the Code of West Virginia, 1931, as amended, all relating to parental notification requirements for abortions performed on unemancipated minors; defining terms; providing for a waiver; requiring notice to minor of right of petition to family court; reporting requirements; providing remedies; specifying when notice not required; severability; and providing penalties.

Be it enacted by the Legislature of West Virginia:
That §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and §16-2F-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.

§16-2F-2. Definitions.
For purposes of this article, unless the context in which used clearly requires otherwise:
(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the expulsion of an embryo or fetus other than by live birth: Provided, That nothing in this article shall be construed so as to prevent the prescription, sale or transfer of intrauterine contraceptive devices or other contraceptive devices or other generally medically accepted contraceptive devices, instruments, medicines or drugs for a female who is not known to be pregnant and for whom such contraceptive devices, instruments, medicines or drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the termination of a known pregnancy.

(3) (2) "Actual notice" means the giving of notice directly, in person or by telephone.

(4) (3) "Constructive notice" means the giving of notice by certified mail to the last known address of the parents or legal guardian, return receipt requested.
(5) "abortion" means the use of any instrument, medicine, drug or any other substance or device with intent to terminate the pregnancy of a female known to be pregnant and with intent to cause the expulsion of a fetus other than by live birth: Provided, That nothing in this article shall be construed so as to prevent the prescription, sale or transfer of intrauterine contraceptive devices or other contraceptive devices or other generally medically accepted contraceptive devices, instruments, medicines or drugs for a female who is not known to be pregnant and for whom such contraceptive devices, instruments medicines or drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the termination of a known pregnancy.
(4) "Medical Emergency" means that condition which, on the basis of the physician's clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious health risk.
(1) (5) "Minor" means any person under the age of eighteen years who has not graduated from high school.
(6) "Parent" means one parent of the pregnant female, or guardian or curator if the pregnant female has one.
(2) (7) "Unemancipated minor" means any minor who is neither married nor who has not been emancipated pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine of this code.
§16-2F-3. Required proof of age prior to performing an abortion.

(a) No physician may perform an abortion upon an unemancipated minor unless such physician has given or caused to be given at least twenty-four hours actual notice to one of the parents or to the legal guardian of the pregnant minor of his intention to perform the abortion, or, if the parent or guardian cannot be found and notified after a reasonable effort to do so, without first having given at least forty- eight hours constructive notice computed from the time of mailing to the parent or to the legal guardian of the minor: Provided, That prior to giving the notification required by this section, the physician shall advise the unemancipated minor of the right of petition to the circuit court for waiver of notification: Provided, however, That any such notification may be waived by a duly acknowledged writing signed by a parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the legal guardian of such pregnant minor, the physician shall refer such pregnant minor to a counselor or caseworker of any church or school or of the department of human services or of any other comparable agency for the purpose of arranging or accompanying such pregnant minor in consultation with her parents. Such counselor shall thereafter be authorized to monitor the circumstances and the continued relationship of and between such minor and her parents.
(c) Parental notification required by subsection (a) of this section may be waived by a physician, other than the physician who is to perform the abortion, if such other physician finds that the minor is mature enough to make the abortion decision independently or that notification would not be in the minor's best interest: Provided, That such other physician shall not be associated professionally or financially with the physician proposing to perform the abortion.
(a) Except in the case of a medical emergency, a physician may not perform an abortion on a pregnant female unless:
(1) The physician or his or her designee has obtained proof of age demonstrating that the female is not an unemancipated minor or proof that the minor is emancipated; or
(2) A family court judge of the county in which the female resides or in which the abortion is to be performed
has entered an order authorizing a physician to perform the abortion pursuant to a petition or motion filed by a female who is unable to produce satisfactory proof demonstrating that she is not a minor or that she is an emancipated minor and after a finding by the court that the female is not a minor or that she is an emancipated minor. This order is not subject to appeal. If the family court judge denies the authorization that decision is subject to review by the circuit court in an in camera hearing. All hearings are subject to the procedural requirements of section five of this article ; or
(3) The physician has complied with section four of this article.
(b) If the physician or his or her designee obtains proof of the age or emancipation of the female as provided in subsection (a)(1) of this section, the physician or his or her designee
shall execute and sign for inclusion in the female's medical record an affidavit stating that to the best information and belief, a reasonable person under similar circumstances would have relied upon the information presented as sufficient evidence of the identity of the person seeking the abortion and that she is not a minor or that she is an emancipated minor.
(c) To the extent applicable, the physician shall keep a copy of all affidavit, proof of age and of any court order provided for in this section for seven years following the date of the abortion.
§16-2F-4. Parental notification required for abortions on unemancipated minors; exceptions; right of petition to Family Court.

(a) A minor who objects to such notice being given to her parent or legal guardian may petition for a waiver of such notice to the circuit court of the county in which the minor resides or in which the abortion is to be performed, or to the judge of either of such courts. Such minor may so petition and proceed in her own right or, at her option, by a next friend.
(b) Such petition need not be made in any specific form and shall be sufficient if it fairly sets forth the facts and circumstances of the matter, but shall contain the following information:
(i) The age of the petitioner and her educational level;
(ii) The county and state in which she resides;
(iii) A brief statement of petitioner's reason or reasons for the desired waiver of notification of the parent or guardian of such minor petitioner.
No such petition shall be dismissed nor shall any hearing thereon be refused because of any defect in the form of the petition.
(c) Upon the effective date of this article or as soon thereafter as may be, the attorney general shall prepare suggested form petitions and accompanying instructions and shall make the same available to the several clerks of the circuit courts. Such clerks shall see that a sufficient number of such suggested form petitions and instructions are available in the clerk's office for the use of any person desiring to use the same for the purposes of this section.
(d) All proceedings held pursuant to this article shall be confidential and the court shall conduct all such proceedings in camera. The court shall inform the minor petitioner of her right to be represented by counsel and that if she is without the requisite funds to retain the services of an attorney, that the court will appoint an attorney to represent her interest in the matter. If the minor petitioner desires the services of an attorney, an attorney shall be appointed to represent such minor petitioner, if she advises the court under oath or affidavit that she is financially unable to retain counsel. Any attorney appointed to represent such minor petitioner shall be appointed and paid for her services pursuant to the provisions of article twenty- one, chapter twenty-nine of this code: Provided, That the pay to any such attorney pursuant to such appointment shall not exceed the sum of one hundred dollars.
(e) The court shall conduct a hearing upon the petition without delay, but in no event shall the delay exceed the next succeeding judicial day, and the court shall render its decision immediately upon its submission and, in any event, an order reflecting the findings of fact and conclusions of law reached by the court and its judgement shall be endorsed by the judge thereof not later than twenty-four hours following such submission and shall be forthwith entered of record by the clerk of the court. All testimony, documents and other evidence presented to the court, as well as the petition and any orders entered thereon and all records of whatsoever nature and kind relating to the matter shall be sealed by the clerk and shall not be opened to any person except upon order of the court and, then, only upon good cause being shown therefor. A separate order book for the purposes of this article shall be maintained by such clerk and shall likewise be sealed and not open to inspection by any person save upon order of the court for good cause shown.
(f) Notice as required by section three of this article shall be ordered waived by the court if the court finds either:
(1) That the minor petitioner is mature and well informed sufficiently to make the decision to proceed with the abortion independently and without the notification or involvement of her parent or legal guardian, or
(2) That notification to the person or persons to whom such notification would otherwise be required would not be in the best interest of the minor petitioner.
(g) If or when the circuit court, or the judge thereof, shall refuse to order the waiver of the notification required by section three of this article, a copy of the petition and all orders entered in the matter and all other documents and papers submitted to the circuit court, may be presented to the supreme court of appeals, or to any justice thereof if such court then be in vacation, and such court or justice if deemed proper, may thereupon order the waiver of notification otherwise required by section three of this article. The supreme court of appeals or justice thereof shall hear and decide the matter without delay and shall enter such orders as such court or justice may deem appropriate.
(h) If either the circuit court or the supreme court of appeals, or any judge or justice thereof if either of such courts be then in vacation, shall order a waiver of the notification required by section three of this article, any physician to whom a certified copy of said order shall be presented may proceed to perform the abortion to the same extent as if such physician were in compliance with the provisions of said section three and, notwithstanding the fact that no notification is given to either the parent or legal guardian of any such unemancipated minor, any such physician shall not be subject to the penalty provisions which may be prescribed by this article for such failure of notification.
(i) No filing fees may be required of any minor who avails herself of any of the procedures provided by this section.

(a) (1) A physician shall not perform an abortion upon an unemancipated minor unless notice is given to the parent of the unemancipated pregnant minor prior to a physician performing an abortion. Notice shall be given at least forty-eight hours prior to the performance of the procedure and a copy of the notice shall be kept in the minor's medical records. A parent may receive:
(A) Actual notice orally at the facility and may waive the forty-eight hour notice period:
Provided, That this waiver shall be construed to waive any period mandated by section two, article two- i, chapter sixteen of this code; or
(B) Constructive notice in writing to the parent's last known address, restricted delivery, return receipt requested. The 48- hour time period for written notice shall commence to run at 12 o'clock noon on the next day on which regular mail delivery takes place, subsequent to the day of the mailing.
(2) Prior to performing an abortion, a physician, or his or her designee, shall obtain from the parent proof of identification and a signed form certifying they have received notice of the intent of the physician to perform an abortion as required by this section
. This information shall be included in the minor's medical records.
(3) The physician performing the abortion or his or her designee, shall execute an affidavit certifying the information presented by the minor and her parent was sufficient evidence of their identity. This affidavit shall be included in the minor's medical records.
(b) Notice to the parent is not required if:
(1) A family court judge of the county in which the unemancipated minor resides or where the abortion is to be performed issues an order authorizing the unemancipated minor to consent to the abortion as provided by section five of this article; or
(2) The physician performing the abortion concludes in his or her clinical judgment, a medical emergency exists. The physician is required to certify to the Department of Health and Human Resources, on a form provided by the Department, the medical justification supporting the physician's judgment that a medical emergency existed. A copy of this form shall be maintained in the minor's medical records.

(c) The physician shall keep a copy of the medical records of a minor for five years past the minor's age of majority, or for seven years following the date of the abortion, whichever is greater.
(d) The Department of Health and Human Resources may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to propose all forms, affidavits and certifications required by this section.

§16-2F-5. Petition to family court; review by circuit court.
The notification requirements of section three of this article do not apply where there is an emergency need for an abortion to be performed if the continuation of the pregnancy constitutes an immediate threat and grave risk to the life or health of the pregnant minor and the attending physician so certifies in writing setting forth the nature of such threat or risk and the consequences which may be attendant to the continuation of the pregnancy. Such writing shall be maintained with the other medical records relating to such minor which are maintained by the physician and the facility at which such abortion is performed.
(a) A family court judge of the county in which the minor resides or in which the abortion is to be performed may hear a petition or motion filed by an unemancipated minor who elects not to allow notification of her parent. The judge may authorize a physician to perform the abortion without notice to the parent if the judge determines that the pregnant minor is mature and capable of giving informed consent to the abortion. If the judge determines that the pregnant minor is not mature, or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent would be in her best interest. The judge shall enter an order authorizing the physician to perform the abortion without notification if the judge concludes that the pregnant minor's best interests would be served. This authorization is not subject to appeal. If the family court judge denies the authorization that decision is subject to review by the circuit court in an in camera hearing. All hearings are subject to the procedural requirements of section five of this article.
(b) A minor may file the petition or motion on her own behalf and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court appointed counsel, and shall, upon her request, provide her with such counsel. The attorney shall be paid for his or her services in accordance with the provisions of article twenty-one, chapter twenty-nine of this code.
(c) Proceedings in family court under this section are confidential and shall be given such precedence over other pending matters so that the family court judge may reach a decision promptly and without delay so as to serve the best interests of the pregnant minor. A family court judge who conducts proceedings under this section shall make written factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge's own findings and conclusions. All records of proceedings in these proceedings shall be kept in the office of the clerk of the circuit court in a sealed file and shall be kept in a locked or sealed cabinet, vault or other container and shall not be open to inspection or copy by anyone unless upon court order for good cause shown.

§16-2F-6. Reporting requirements for physicians.

(a) Any physician performing an abortion upon an unemancipated minor shall provide the Department of Health and Human Resources a written report of the procedure within thirty days after having performed the abortion. Nothing in the report shall personally identify any individual female. The following information, in addition to any other information which may be required by the Department of Health and Human Resources, regarding the minor receiving the abortion shall be included in such reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births; (5) Previous abortions;

(6) Complications, if any, of the abortion being reported;

(7) Reason for waiver of notification of the minor's parent, if such notice was waived; and
(7) The city and county in which the abortion was performed. Any such report shall not contain the name, address or other information by which the minor receiving the abortion may be identified.
(8) The number of females whose parent was notified pursuant to section four of this article and the manner in which they were notified;
(9) The number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;
(10) The number of females upon whom the physician performed an abortion without providing the notice described in section four of this article, including the number who were emancipated minors; and
(11) The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification.
(b) The Department of Health and Human Resources may propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to develop reporting forms as described in this section. The rules shall ensure that copies of the reporting forms described in this section, together with a reprint of this article, are provided:
(1) By the first day of December of every year, other than the calendar year in which forms are distributed in accordance with this section, to all physicians licensed to practice in this state; and

(2) To each physician who subsequently becomes newly licensed to practice in this state, at the same time as official notification to that physician that the physician is so licensed.
(c) By the twenty-eighth day of February of each year following a calendar year in any part of which this article was in effect, each physician or his or her designee who provided the notice described in section four of this article and any physician who knowingly performed an abortion upon a pregnant minor or upon a female for whom a guardian or curator had been appointed pursuant to applicable federal law or as provided by sections three and four, article ten, chapter forty-four of this code because of a finding of incompetency of the pregnant minor during the previous calendar year shall submit to the Department of Health and Human Resources a copy of the form described in this section with the requested data entered accurately and completely. The information included in the reports shall not personally identify any individual female.

(d) Reports that are not submitted within thirty days following the due date are subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty day period they are overdue. Any physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought by the Department of Health and Human Resources, be directed by a circuit court of the county in which the physician resides or practices to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.
(e) By the thirtieth day of June of each year the Department of Health and Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this article. The report shall also include statistics which shall be obtained from the Supreme Court of Appeals giving the total number of petitions or motions filed under subsection (a), section five of this article including the number in which the court appointed a guardian ad litem, the number in which the court appointed counsel, the number in which the family court judge issued an order authorizing an abortion without notification, the number in which the family court judge denied such an order, the number of denials from which an appeal was filed, the number of appeals that resulted in the denials being affirmed, and the number of appeals that resulted in reversals of denials. Each report shall provide the statistics from late or corrected reports
for all previous calendar years. The information included in the public reports shall not personally identify any individual female.
(f) If the Department of Health and Human Resources fails to issue the public report required by subsection (e) of this section, any group of ten or more citizens of this state may seek an injunction in the circuit court of Kanawha County against the Secretary of the Department of Health and Human Resources requiring that a complete report be issued within a period stated by court order.

(g) The Department of Health and Human Resources may propose rules for legislative approval pursuant to section five, article three, chapter twenty-nine-a of this code to alter the dates established by subdivision (1), subsection (b) or subsection (c) or (e) of this section or consolidate the forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report described in subsection (e) of this section is issued at least once every year.
§16-2F-8. Penalties.
Any person who knowingly performs an abortion upon an unemancipated minor in violation of this article or who knowingly fails to conform to any requirement of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than thirty days, or both fined and imprisoned.
(1) A person who uses a false governmental record or makes a false representation or statement in order to obtain an abortion for a minor or who signs an affidavit or certification required by section three or four of this article that is false is guilty of false swearing as defined in section two, article five, chapter sixty-one of this code.
(2) Any person who knowingly or recklessly performs an abortion on a pregnant unemancipated minor in violation of this article commits a felony and upon conviction shall be imprisoned in a state correctional facility not less than three nor more than ten years.
(3) Any person who knowingly, recklessly or negligently performs an abortion on an unemancipated minor in violation of this article is civilly liable to the person or persons entitled to receive parental notice for any subsequent costs of medical or psychiatric treatment a minor might require because of complications resulting from the abortion.
(4) It is not a defense to a claim brought pursuant to this section that the minor gave informed and voluntary consent.
(5) An unemancipated minor does not have capacity to consent to any action that violates this article.
§16-2F-9. Severability.

(1) The provisions of subsection (cc), section ten, article two, chapter two of this code shall apply to the provisions of this article to the same extent as if said subsection were set forth in extenso herein.
(2)
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.

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