H. B. 2295
(By Delegate Azinger)
[Introduced January 12, 2011; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2L-1, relating to requiring any abortion be performed in a hospital or only by a physician with admitting privileges to a hospital; providing, if not performed in a hospital, anesthesia must be given by a licensed anesthesiologist or licensed certified nurse anesthetist; requiring certain reporting requirements of abortion or reproductive health centers and for license suspension for failure to report; and, providing a basis for professional disciplinary action, injunctive relief, damages and penalties for violations.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-2L-1, to read as follows:
ARTICLE 2L. VENUES RESTRICTED FOR ABORTION PROCEDURE.
§16-2L-1. Abortions to be performed only in hospital or by physician with admitting privileges.
(a) For purposes of this article, the following terms have the following meanings:
(1) “Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known by the defendant to be pregnant. Such use or prescription is not an abortion if done with the intent to do any of the following:
(A) Save the life or preserve the health of an unborn child;
(B) Remove a dead unborn child; and
(C) Remove an unborn child prematurely in order to preserve the health of the mother and her unborn child.
(2) “Abortion or reproductive health center” means an institution licensed as such pursuant to the provisions of the law of this state.
(3) “Anesthesiologist” means a physician qualified by appropriate medical standards to administer anesthesia.
(4) “Certified registered nurse anesthetist” means a person licensed as such pursuant to the provisions of the law of this state.
(5) “Facility” means any place other than a hospital.
(6) “Hospital” means an institution licensed as such pursuant to the law of this state.
(7) “Hospital admitting privileges” means the privileges given to a physician by a hospital allowing the physician to practice medicine at that hospital or allowing the physician to admit patients to that hospital.
(8) “Medical emergency” means that condition which, on the basis of the physician’s good faith clinical judgment, complicates the medical condition of a pregnant woman so as to necessitate the immediate abortion of her pregnancy to avert her death or in which a delay will create a serious risk of substantial and or reversible impairment of a major bodily function.
(9) “Physician” means any person licensed to practice medicine in this state. The term includes medical doctors and doctors of osteopathy.
(b) Except in the case of a medical emergency, any physician performing an abortion in a facility other than a hospital, must have admitting privileges at a hospital within the local service area where the abortion is to be performed.
(c) Except in the case of a medical emergency, any physician performing an abortion in a facility other than a hospital, where the procedure requires general anesthesia, shall perform the abortion only if the anesthesia is administered by a licensed anesthesiologist or a licensed certified registered nurse anesthetist.
(d) Every abortion or reproductive health center shall report to the Bureau for Public Health, the name of each physician and the name of the hospital at which the physician has admitting privileges, and the name of each anesthesiologist and certified registered nurse anesthetist, providing services at the abortion or reproductive health center. The report shall be made on or before January 31 of each year and a supplemental report for any departing or new physician, anesthesiologist, or certified registered nurse anesthetist shall be made within thirty days of the departure or beginning service. All reports shall be made on forms provided by the Bureau for Public Health.
(e) (1) Any person who intentionally, knowingly, or recklessly violates any provision of this article is guilty of a misdemeanor and, shall be fined not more than $500 and confined in jail for not more than thirty days.
(2) No physician may be guilty of violating the provisions of this section if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed to a medical certainty that providing the abortion was a medical emergency. The determination and all supporting reasons shall be documented in writing in the patient’s medical records by the physician.
(3) Any abortion or reproductive health center that violates any provision of this section shall, upon a determination by the Bureau for Public Health, have its license suspended for not less than twelve months.
(f) In addition to the remedies available under common law or under the statutory law of this state, failure to comply with any requirement of this section shall:
(1) Provide a basis for a civil action for injunctive, compensatory, and punitive damages. Any conviction under this section shall be admissible in a civil court as prima facie evidence of a failure to meet any requirement of this article. Any civil action may be based on a claim that the article was a result of simple negligence, gross negligence, wantonness, willfulness, intention, or other legal standard of care.
(2) Provide a basis for professional disciplinary action under any applicable statutory or regulatory procedure for the suspension or revocation of the license of any physician, nurse, or other licensed or regulated person.
(g) The provisions of this section are declared to be severable, and if any provision, word, phrase, or clause of this section or the application thereof to any person is held invalid, the invalidity may not affect the validity of the remaining portions of this section.
(h) Nothing in this section may be construed as creating or recognizing a right to abortion, nor shall it make lawful an abortion that is currently unlawful.
NOTE: The purpose of this bill is to require that abortions be performed in hospitals or by physicians with admitting privileges to a hospital within the local service area.
This article is new; therefore, it has been completely underscored.