House Bill 2953 History
H. B. 2953
(By Delegate Azinger)
[Introduced March 9, 2005; 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 section §16-2J-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 §16-2J-1, to read as
§16-2J-1. Abortions to be performed only in hospital or by
physician with admitting privileges.
ARTICLE 2J. VENUES RESTRICTED FOR ABORTION PROCEDURE.
(a) For purposes of this article, the following terms shall
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
(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
(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
(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
the last day of January 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 five hundred dollars 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, wilfulness,
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
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, strike-throughs and
underscoring have been omitted.