H. B. 2036
(By Delegate Border)
[Introduced January 9, 2008; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §33-42-8 of the Code of West Virginia,
1931, as amended, relating to establishing the crime of
partial birth infanticide; penalty; definitions; and
exceptions.
Be it enacted by the Legislature of West Virginia:
That §33-42-8 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-42-8. Partial-birth infanticide prohibited; criminal penalty;
definitions; exceptions.
(a) Any person who knowingly performs a partial-birth abortion
and thereby kills a human fetus is guilty of a felony and shall be
fined not less than ten thousand dollars, nor more than fifty
thousand dollars, or imprisoned not more than two years, or
both fined and imprisoned. This section does not apply to a partial-birth abortion that is necessary to save the life of a
mother when her life is endangered by a physical disorder, illness
or injury.
(b) A physician charged pursuant to this section may seek a
hearing before the West Virginia board of medicine on the issue of
whether the physician's act was necessary to save the life of a
mother pursuant to the provisions of subsection (a) of this
section. The findings of the board of medicine are admissible on
this issue at the trial of the physician. Upon a motion by the
defendant, the court shall delay the beginning of trial for not
more than thirty days to permit the board of medicine hearing to
take place.
(c) No woman may be prosecuted under the provisions of this
section for having a partial-birth abortion, nor may she be
prosecuted for conspiring to violate the provisions of this
section.
(a) Any person who knowingly performs partial birth
infanticide and thereby kills a human infant is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than two years nor more than ten
years and fined not more than one hundred thousand dollars.
(b) For the purposes of this section, "partial birth
infanticide" means any deliberate act that: (i) Is intended to
kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother; and that (ii)
does kill such infant, regardless of whether death occurs before or
after extraction or expulsion from its mother has been completed.
The term "partial birth infanticide" may not under any
circumstances be construed to include any of the following
procedures: (i) The suction curettage abortion procedure; (ii) the
suction aspiration abortion procedure; (iii) the dilation and
evacuation abortion procedure involving dismemberment of the fetus
prior to removal from the body of the mother; or (iv) completing
delivery of a living human infant and severing the umbilical cord
of any infant who has been completely delivered.
(c) For the purposes of this section, "human infant who has
been born alive" means a product of human conception that has been
completely or substantially expelled or extracted from its mother,
regardless of the duration of pregnancy, which after such expulsion
or extraction 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.
(d) For purposes of this section, "substantially expelled or
extracted from its mother" means, in the case of a headfirst
presentation, the infant's entire head is outside the body of the
mother, or, in the case of breech presentation, any part of the
infant's trunk past the navel is outside the body of the mother.
(e) This section does not prohibit the use by a physician of
any procedure that, in reasonable medical judgment, is necessary to
prevent the death of the mother, so long as the physician takes
every medically reasonable step, consistent with such procedure, to
preserve the life and health of the infant. A procedure may not be
deemed necessary to prevent the death of the mother if completing
the delivery of the living infant would prevent the death of the
mother.
(f) The mother may not be prosecuted for any criminal offense
based on the performance of any act or procedure by a physician in
violation of this section.
NOTE: The purpose of this bill is to establish the crime of
partial birth infanticide.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.