Senate Bill No. 92
(By Senators Prezioso, Bowman and Unger)
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[Introduced January 9, 2008; referred to the Committee on Health
and Human Resources; then to the Committee on the Judiciary; and
then to the Committee on Finance.]
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A BILL to repeal §16-2F-5 of the Code of West Virginia, 1931, as
amended; to amend and reenact §16-2F-2, §16-2F-3, §16-2F-4,
§16-2F-6, §16-2F-8 and §16-2F-9 of said code; 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be repealed; that §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-6, §16-2F-8 and §16-2F-9 of said code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) "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 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 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 of this code.
§16-2F-3. Required proof of age prior to preforming 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. Parental notification required for abortions on
unemancipated minors; exceptions.
(a) (1) A physician shall 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 shall not be construed to waive
any period mandated by section two, article two-i, chapter sixteen
of this code; 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 o'clock 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 his or 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 article
eight-b and article eight-d of chapter sixty-one of this code and
the attending physician reports the sexual abuse, neglect, or
physical abuse in accordance with section two, article six-a,
chapter forty-nine of this code. 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 of this code 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 shall 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 shall 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 of this code 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 the first day of December 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 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 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 of this code 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 five hundred
dollars for the first month and one thousand 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.
(f) 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
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 of this code 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.
(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, chapter
sixty-one of this code.
(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 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 jail not more than one year, or both.
(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 article eight-b and eight-d of
chapter sixty-one of this code, 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.
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.
§16-2F-2, §16-2F-3, §16-2F-4, §16-2F-8 and §16-2F-9 have been
substantially rewritten; therefore, strike-throughs and
underscoring have been omitted.
§16-2F-8a is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.