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Introduced Version Senate Bill 533 History

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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)

____________

[Introduced March 14, 2005; referred to the Committee

on Health and Human Resources; and then to the Committee on the Judiciary.]


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; waiver; notice to minor of right of petition to circuit court; reporting requirements; creating penalties and remedies; specifying where notice not required; and severability.

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 death of the unborn child. (3) (2) "Actual notice" means the giving of notice directly, in person or by telephone.
(3) "Attempt to Perform an Abortion" means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in West Virginia in violation of this article.
(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.
(5) "Medical Emergency" means that condition which, on the basis of the physician's good faith 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 risk of substantial and irreversible impairment of a major bodily function.
(1) (6) "Minor" means any person under the age of eighteen years who has not graduated from high school.
(7) "Parent" means one parent of the pregnant female, or court-appointed guardian or curator if the pregnant female has one.
(8) "Unborn child" means any individual human organism from fertilization until birth.
(2) (9) "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. Proof of age.

(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.
Except in the case of a medical emergency, a physician may not perform an abortion on a pregnant female unless at least one of subsections (a) through (d) of this section is complied with:
(a) The physician or the physician's agent has obtained proof of age demonstrating that the female is not a minor;

(b) The physician or the physician's agent has obtained proof that the female, although a minor, is emancipated;
(c) If a female is unable to produce satisfactory proof demonstrating that she is not a minor or that she is an emancipated minor, any judge of the family court of the county in which the female resides or in which the abortion is to be performed shall, upon petition, or motion, and after an appropriate hearing subject to the same procedural requirements specified in subsection two, section five of this article and subsection three, section five of this article for a judicial bypass hearing for a pregnant minor, authorize a physician to perform the abortion if the judge determines, by a preponderance of the evidence, that she is not a minor or that she is an emancipated minor. This authorization is not subject to appeal, but an expedited confidential appeal shall be available to any female to whom a judge denies such an authorization, under the same procedural requirements specified in subsection four, section five of this article for an appeal arising out of a judicial bypass hearing for a pregnant minor; and
(d) The physician has complied with section four of this article.
If subsections (a) or (b) of this section are applicable, the physician or physician's agent shall execute and sign for inclusion in the female's medical record an affidavit stating the following:
"I (insert name of physician or physician's agent) certify that according to my best information and belief, a reasonable person under similar circumstances would rely on the information presented by or on behalf of (insert name of person on whom abortion is performed) as sufficient evidence of her identity and that she is not a minor (or, if applicable, that she is an emancipated minor)."
To the extent applicable, the physician shall keep a copy of this affidavit, the proof required by subsections (a) or (b) and of any signed, sealed judicial order obtained pursuant to subsection (c) of this section for seven years following the date of the abortion.

§16-2F-4. Notification concerning abortion.

(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) A physician may not perform an abortion upon a pregnant unemancipated minor unless at least one of paragraphs (1) through (5) of this subsection is complied with:
(1) The physician performing the abortion or the physician's agent gives at least forty-eight hours actual notice of the physician's intent to perform the abortion to a parent of the minor who appears, in person, at the facility to receive notification, except that a parent receiving notice in this manner may orally waive any or all time remaining in this forty-eight hour waiting period:
Provided, That this waiver shall not be construed to waive any waiting period mandated by section two, article two-i, chapter sixteen of this code. The physician performing the abortion or the physician's agent shall obtain from such parent a copy of the parent's proof of identification and a completed, signed form with the following statement:
"I certify that I, (insert parent's name), am the parent, guardian or curator of (insert minor's name) and have been notified that (insert the physician's name) intends to perform an abortion on my daughter (or ward). I understand that any person who knowingly or recklessly makes this certification is guilty of false swearing which may carry a penalty of a fine not more than one thousand dollars, and, in the discretion of the court, confined in jail not more than one year."
_____________________________

Signature of parent, guardian or curator.

______________________________

Date of signature.

The physician or physician's agent shall execute for inclusion in the minor's medical record an affidavit stating the following:
"I (insert name of physician or physician's agent) certify that according to my best information and belief, a reasonable person, under similar circumstances, would rely on the information presented by both the minor and her parent as sufficient evidence of identity.
"
(2) The physician performing the abortion or the physician's agent personally delivers to the parent at the usual place of abode of the parent at least forty-eight hours written notice, addressed to the parent, of the physician's intent to perform the abortion. The physician or physician's agent shall execute and sign for inclusion in the minor's medical record an affidavit stating the following:
"I (insert name of physician or physician's agent) personally delivered written notice of intent to perform an abortion on (insert name) to (insert name) at (insert address) on (insert date) at (insert time) and certify that according to my best information and belief, a reasonable person under similar circumstances would rely on the information presented as sufficient evidence of the identity of the minor and of the name and usual place of abode of her parent to whom the notice was delivered."
(3) The physician performing the abortion or the physician's agent mails written notice of the physician's intent to perform the abortion, addressed to the parent at the usual place of abode of the parent with return receipt requested and restricted delivery to the addressee, which means postal employees can only deliver the mail to the authorized address. The time of delivery, which must be at least forty-eight hours before the abortion, shall be deemed to occur at 12 o'clock noon on the next day on which regular mail delivery takes place, subsequent to the day of mailing. The physician or physician's agent shall execute and sign for inclusion in the minor's medical record an affidavit stating the following: "I (insert name of physician or physician's agent) personally mailed written notice of intent to perform an abortion on (insert name) to (insert name) at (insert address) on (insert date) and certify that according to my best information and belief, a reasonable person under similar circumstances would rely on the information presented as sufficient evidence of the identity of the minor and of the name and usual place of abode of her parent to whom the notice was mailed."
(4) The judge of a circuit court of the county in which the minor resides or in which the abortion is to be performed issues an order authorizing the minor to consent to the abortion as provided by section five of this article.
(5) The physician performing the abortion:
(A) Concludes that on the basis of the physician's good faith clinical judgment, a medical emergency exists; and
(B) Certifies in writing to the West Virginia Department of Health and Human Resources on a form provided by the Department, and in the patient's medical record, the medical indications supporting the physician's judgment that the circumstances described by subparagraph (A) exist.
(b) Any person unable to produce satisfactory proof of identity, relationship, usual place of abode or other fact requisite under this section, or any pregnant female whose ability to obtain an abortion is thereby affected, may file a petition or motion with any judge of a circuit court of the county in which the person resides or in which the abortion is to be performed who shall, upon petition, or motion, and after an appropriate hearing subject to the same procedural requirements specified in subsections two and three, section five of this article for a judicial bypass hearing for a pregnant minor, authorize a physician to perform the abortion if the judge determines, by a preponderance of the evidence, the truth of the requisite fact or facts. Such an authorization is not subject to appeal, but an expedited confidential appeal shall be available if the judge denies such an authorization, under the same procedural requirements specified in subsection four, section five of this article for an appeal arising out of a judicial bypass hearing for a pregnant minor.

(c) The physician shall keep a copy of the medical records of the minor for five years past the minor's majority, or for seven years following the date of the abortion, whichever is greater. The physician shall keep as a part of those records, as applicable: a copy of the parent's proof of identification and certified statement under paragraph (1) of subsection (a), a copy of any affidavits required by this section, a copy of any written notices provided or mailed under this section, a copy of a certificate of mailing and return receipt under paragraph (3) of subsection (a), and a copy of any signed, sealed judicial order obtained pursuant to subsection (b) of this section, or section five of this article.
(d) The West Virginia Department of Health and Human Resources shall prepare a form or forms to be used for making the affidavits and certifications required by this section and section three of this article.
§16-2F-5. Judicial Bypass.
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.
(1) If a pregnant minor elects not to allow the notification of her parent, any judge of the family court of the county in which the minor resides or in which the abortion is to be performed shall, upon petition, or motion, and after an appropriate hearing, authorize a physician to perform the abortion if the judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed 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, by clear and convincing evidence, shall determine whether the performance of an abortion upon her without notification of her parent would be in her best interest and shall authorize the physician to perform the abortion without notification if the judge concludes that the pregnant minor's best interests would be served thereby.
(2) A pregnant minor may participate in proceedings in the court 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.
(3) Proceedings in the court under this section are confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant minor. A judge of the court who conducts proceedings under this section shall make in writing specific 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.
(4) An expedited confidential appeal is available to any such pregnant minor for whom the court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification is not subject to appeal. No filing fees may be required of any such pregnant minor at either the trial or the appellate level. Access to the trial court for the purposes of a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded to such pregnant minor twenty-four hours a day, seven days a week.

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

(1) 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. Within ninety days after this article is enacted, the Department of Health and Human Resources shall provide conforming reporting forms for this purpose to all physicians and 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 reporting form:
(1) (a) Age;
(2) (b) Educational level;
(3) (c) Previous pregnancies;
(4) (d) Previous live births; (5) (e) Previous abortions;

(6) (f) 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
(g) 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.
(h) The number of females whose parent was notified by the physician or an agent of the physician pursuant to section four of this article; of that number, the number provided personally as described in subsection (a), section four of this article, and the number provided by mail as described in subsection (b) of section four of this article; and of each of those numbers, the number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;
(i) The number of females upon whom the physician performed an abortion without providing to the parent of the minor the notice described in section four of this article; of that number, the number who were emancipated minors, and the numbers of abortions performed in which 16-2F-4(a)(3)(A) was applicable;
(j) The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification.
(2) The Department of Health and Human Resources shall ensure that copies of the reporting forms described in this section, together with a reprint of this article, are provided:
(a) 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; and
(b) By the first day of December of every year, other than the calendar year in which forms are distributed in accordance with paragraph (1) of this subsection, to all physicians licensed to practice in this state.
(3) 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 who provided, or whose agent 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 section three, article ten, chapter forty-four, and section four, article ten, chapter forty-four of the code of West Virginia because of a finding of incompetency during the previous calendar year shall submit to the Department of Health and Human Resources a copy of the form described in subsection one, section six of this article, with the requested data entered accurately and completely. Any such report may not contain the name, address or other information by which the minor receiving the abortion may be identified.
(4) Reports that are not submitted more than a grace period of 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.
(5) 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 section for each of the items listed in subsection (1) of this section. 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 one, section five of this article and of that number: The number in which the court appointed a guardian ad litem, the number in which the court appointed counsel, the number in which the judge issued an order authorizing an abortion without notification, the number in which the judge denied such an order, and of the last, the number of denials from which an appeal was filed, the number of such appeals that resulted in the denials being affirmed, and the number of such appeals that resulted in reversals of such denials. Each report shall also provide the statistics for all previous calendar years for which such a public statistical report was required to be issued, adjusted to reflect any additional information from late or corrected reports. The Department of Health and Human Resources shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any individual female.
(6) 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 subsections two-b, three, or five 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 five is issued at least once every year.
(7) If the Department of Health and Human Resources fails to issue the public report required by subsection (5) 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 Director of the Department of Health and Human Resources requiring that a complete report be issued within a period stated by court order. Failure to abide by such an injunction shall subject the Director of the Department of Health and Human Resources to sanctions for civil contempt.
(8) If judgment is rendered in favor of the plaintiff in any action described in this section, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.

§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, knowing it is false or with reckless disregard for its truth or falsity, or who signs an affidavit or certification required by section three or four of this article that is false, knowing it is false or with reckless disregard for its truth or falsity 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.
(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 treatment a minor might require because of complications resulting from the abortion.

(4) An unemancipated minor, or the parent of a minor, upon whom an abortion has been performed, or attempted to be performed, without complying with this article, may maintain a cause of action against the person who performed or attempted to perform the abortion.
(5) It is not a defense to a claim brought pursuant to this section that the minor gave informed and voluntary consent.
(6) 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 one or more provisions, sections, subsections, sentences, clauses, phrases or words 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 such unconstitutionality. 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 that any one or provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.



NOTE: The purpose of this bill relates to parental involvement in the minor's decision to obtain an abortion. The bill requires abortion providers to obtain proof of age prior to the performance of an abortion on a pregnant woman. The bill provides for a judicial bypass. Abortion providers must provide actual or constructive notice to parents of minors, and maintain certifications of such notice as well as parent's proof of identification for a minimum time period in the medical file of the minor. The bill creates civil liability, criminal penalties, and mandates certain reporting requirements.

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


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