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Introduced Version House Bill 2651 History

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H. B. 2651

 

         (By Delegates Boggs, Lane, Sobonya and Ellem)

         [Introduced January 20, 2011; referred to the

Committee on Health and Human Resources then the Judiciary.]

 

 

 

A BILL to repeal §16-2F-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-6, §16-2F-8 and §16-2F-9; and to amend said code by adding thereto a new section, designated §16-2F-8a, all relating to parental notification requirements for obtaining abortions by unemancipated minors; defining terms; requiring proof of age prior to an abortion; providing for substitute notification in certain instances; modifying physician reporting requirements; providing for criminal penalties; providing for preservation of fetal tissue in instances of sexual assault; and providing for severability.

Be it enacted by the Legislature of West Virginia:

    That §16-2F-5 of the Code of West Virginia, 1931, as amended, be repealed; and that §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-6, §16-2F-8 and §16-2F-9 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §16-2F-8a, 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) "Minor" means any person under the age of eighteen years who has not graduated from high school.

    (2) "Unemancipated minor" means any minor who is neither married nor who has been emancipated as pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine of this code.

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

    (4) "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.

    (1) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to intentionally terminate the pregnancy of a female known to be pregnant with knowledge that the termination by those means will, with reasonable likelihood, cause the expulsion of fetus other than by live birth: Provided, That nothing in this article may 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 the 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.

    (2) "Actual notice" means the giving of notice directly, in person.

    (3) "Constructive notice" means the giving of notice by certified mail, return receipt requested, to the last known address of the parents or legal guardian.

    (4) “Medical emergency” means any condition that a reasonably prudent physician with knowledge of the case and treatment possibilities with respect to the medical conditions involved would determine that a condition exists that would complicate the medical condition of a pregnant female to necessitate the immediate termination of her pregnancy to avert her death or for which delay will create a serious risk of substantial irreversible physical impairment of a major bodily function.

    (5) "Minor" means any person under the age of eighteen years.

    (6) “Parent” means one parent of the pregnant female, or guardian or curator if the pregnant female has one.

    (7) "Unemancipated minor" means any minor who is neither married nor who has been emancipated as pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine.

§16-2F-3. Parental notification required for abortions performed on unemancipated minors; waiver; notice to minor of right of petition to circuit court; minor to be referred for counseling.

    (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.

§16-2F-3. Required proof of age prior to performing an abortion.

    (a) 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 which a reasonably prudent person would think demonstrates the female is eighteen years of age or older or, proof that a reasonable and prudent person would think demonstrates that the minor is emancipated; or

    (2) 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 subdivision (1) of subsection (a) 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 and prudent 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 in the female patient's file of all affidavits, proof of age and of any court order provided in this section for seven years following the date of the abortion or, for five years after the minor reaches the age of majority, whichever is longer.

§16-2F-4. Waiver of notification; petition to circuit court; contents of petition; duties of Attorney General and circuit clerk; confidentiality of proceedings; appointment of counsel and limitation of compensation; findings required to be made by court; petition to supreme court; waiver of certain fees.

    (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.

§16-2F-4. Parental notification required for abortions on unemancipated minors; exceptions.

    (a) (1) A physician may 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 performing the procedure and a copy of the notice shall be kept in the minor's medical records for at least seven years or, for five years after she reaches the age of majority, whichever is longer. A parent may receive:
    (A) Actual notice and may waive the forty-eight-hour notice period: Provided, That this waiver may not be construed to waive any period mandated by section two, article two-i, chapter sixteen; or
    (B) Constructive notice sent via the United States post office to the parent's last known address, restricted delivery, return receipt requested. The address of the parent must be sufficiently complete and accurate so that a reasonable and prudent person, under similar circumstances, would have relied upon it as sufficient evidence that the parent resides at that address. The forty-eight-hour time period for written notice shall commence to run at twelve noon on the next day on which regular mail delivery takes place, subsequent to the date of the mailing.
    (2) Prior to performing an abortion, a physician, or his or her designee, shall obtain from the parent to whom actual notice is given, proof of identification that a reasonable and prudent person, under similar circumstances, would have relied upon as sufficient evidence that the person is the parent of the minor female. A copy of this information or specific details concerning the proof provided shall be included in the minor's medical records for at least seven years or, for five years after the minor reaches the age of majority, whichever is longer.
    (3) The physician performing the abortion, or his or her designee, shall execute an affidavit certifying the information presented by the female of her age or emancipation was so complete and accurate that a reasonable and prudent person, under similar circumstances would have relied upon the information as sufficient evidence of her age or emancipation. This affidavit shall be included in the female's medical records for at least seven years or, for five years after the minor reaches the age of majority, whichever is longer.
    (4) The physician performing the abortion, or his or her designee, shall execute an affidavit certifying the information presented by the parent receiving actual notice was sufficient evidence of her identity which a reasonable and prudent person, under similar circumstances, would have relied upon as sufficient evidence that the person is the parent of the minor. This affidavit shall be included in the minor's medical records for at least seven years or, for five years after the minor reaches the age of majority, whichever is longer.
    (5) The physician performing the abortion, or his or her designee, shall execute an affidavit certifying the information provided by the minor concerning the last known address of the parent for constructive notice was complete and accurate that a reasonable and prudent person, under similar circumstances, would have relied upon as sufficient evidence of the parent's last known address. This affidavit shall be included in the minor's medical records and kept for at least seven years or until five years after the minor reaches the age of majority, whichever is longer.
    (b) Notice to the parent is not required if:
    (1) The pregnant minor female declares that she is a victim of sexual abuse, neglect, or physical abuse as defined in articles eight-b and eight-d, chapter sixty-one and the attending physician reports the sexual abuse, neglect, or physical abuse in accordance with section two, article six-a, chapter forty-nine. In these circumstances, the Department of Health and Human Resources and, any judge supervising proceedings in which information concerning the Department of Health and Human Resources report or investigation may be presented or referred, shall maintain the confidentiality of the fact that she has sought or obtained an abortion and shall take all necessary steps to ensure that this information is not revealed to her parents. The physician is required to describe in writing the sexual abuse, physical abuse or neglect on a form provided by the Department of Health and Human Resources. A copy of this form shall be maintained in the minor’s medical records for at least seven years or for five years after she reaches the age of majority, whichever is longer; or

    (2) The physician performing an abortion concludes 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 for at least seven years or for five years after she reaches the age of majority, whichever is longer.

    (c) The physician shall keep a copy of the medical records of a minor for at least seven years following the date of the abortion or for five years past the minor's age of majority, whichever is greater.
    (d) The attending physician or the physician's designee shall verbally inform the parent within twenty-four hours after the performance of a medical emergency abortion, that a medical emergency abortion was performed on the unemancipated minor and shall send a written notice, in the manner described in paragraph (B), subdivision (1), subsection (a) of this section of the performed medical emergency abortion.

    (e) The Department of Health and Human Resources shall propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a to propose all forms, affidavits and certifications required by this section.

§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 this report may personally identify any individual female. The Department of Health and Human Resources shall provide reporting forms for this purpose to all physicians and public health facilities required to be licensed pursuant to article five-b of this chapter. 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 the 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; and

    (7) Reason for waiver of notification of the minor's parent or guardian, if such notice was waived; and

    (8) (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.

    (b) Any physician performing abortions upon unemancipated minors shall provide the Department of Health and Human Resources a written report containing the information listed in this subsection. Nothing in the report may 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:
    (1) The number of females whose parents were notified pursuant to section four of this article and the manner in which they were notified;

    (2) The number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;
    (3) 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;
    (4) The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification;
    (5) The number of abortions performed for medical emergency reasons; and

    (6) The number of abortions performed on pregnant minors who declared they were a victim of sexual assault or abuse, neglect or physical abuse.
    (c) The Department of Health and Human Resources may propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a 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 December 1 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.
    (d) By February 28 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 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 forms 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.
    (e) Reports that are not submitted within thirty days following the due date are subject to a late fee of $500 for the first month and $1,000 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.
    (f) By June 30 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 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.
    (g) If the Department of Health and Human Resources fails to issue the public report required by subsection (f) 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.

    (h) The Department of Health and Human Resources may propose rules for legislative approval pursuant to section five, article three, chapter twenty-nine-a to alter the dates established by subdivision (1), subsection (b) of this section or subsection (c) or (f) 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 (f) 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.

§16-2F-8. Penalties.

    (a) 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 of chapter sixty-one.
    (b) Any 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 civilly liable to the person or persons entitled to receive parental notice for pain and suffering and any subsequent costs of medical or psychiatric treatment a minor might require because of complications resulting from the abortion.
    (c) 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 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than one year, or both fined and confined.

    (d) 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 pain and suffering and any subsequent costs of medical or psychiatric treatment a minor might require because of complications resulting from the abortion.
    (e) It is not a defense to a claim brought pursuant to this section that the minor gave informed and voluntary consent.
    (f) An unemancipated minor does not have capacity to consent to any action that violates this article.

§16-2F-8a. Fetal tissue preservation.

    (a) Any physician who performs an abortion on a minor who has alleged sexual assault pursuant to articles eight-b and eight-d of chapter sixty-one-e, shall preserve, in accordance to the rules of the West Virginia State Police Crime Lab, the tissue extracted during the abortion. The physician shall submit the tissue to the State Police Child Abuse and Neglect Investigation Unit for investigation.

    (b) Failure of a physician to comply with these provisions shall constitute unprofessional conduct.

§16-2F-9. Severability.

    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.

§16-2F-9. Severability.

    If any one or more provision, section, subsection, sentence, clause, phrase or word of this article or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this article shall remain effective notwithstanding the provision, section, subsection, sentence, clause, phrase or word of this article or the application thereof to any person or circumstance held to be unconstitutional. The Legislature hereby declares that it would have passed this article, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.




    NOTE: The purpose of this bill is relative to parental involvement in the minor’s decision to obtain an abortion. The bill requires physicians to obtain proof of age prior to the performance of an abortion on a pregnant woman. The bill provides for a constructive notice to parents of minors, and maintains information for a specified period in the minor’s medical file. The bill creates penalties. The bill also provides for collection of fetal tissue in instances when the minor alleges sexual assault. Finally, the bill mandates specific reporting requirements.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §16-2F-8a is new; therefore, strike-throughs and underscoring have been omitted.

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