Senate Bill No. 268
(By Senators Wagner, Plymale, Ross, Bailey, Bowman and Kimble)
[Introduced February 6, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
A BILL to repeal sections eight and nine, article two-f, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one, two, three, four, five, six and seven of said
article, all relating to requiring parental consent before
abortions can be performed on minors; legislative findings
and purpose; definitions; parental consent for abortion for
unemancipated minor; limitations; criminal penalties;
substitute parental consent provisions; and severability.
Be it enacted by the Legislature of West Virginia:
That sections eight and nine, article two-f, chapter sixteen
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections one, two,
three, four, five, six and seven of said article be amended and
reenacted, all to read as follows:
ARTICLE 2F. PARENTAL CONSENT FOR ABORTIONS PERFORMED ON
§16-2F-1. Legislative findings and intent.
The Legislature finds that immature minors often lack the
ability to make fully informed choices that take into account
both immediate and long-range consequences of their actions; that
the medical, emotional and psychological consequences of abortion
are serious and of indeterminate duration, particularly when the
patient is immature; that in its current abortion policy as
expressed in Bellotti v. Baird, 443 U. S. 622 (1979) and H.
L. v. Matheson, 450 U. S. 398 (1981), the United States supreme
court clearly relies on physician's commitment to consider all
factors, physical and otherwise, before performing abortions on
minors; that parents ordinarily possess information essential to
a physician's exercise of his best medical judgment concerning
their child; and that parents who are aware that their minor
daughter has had an abortion may better ensure that the minor
receives adequate medical attention after her abortion. The Legislature further finds that parental consultation regarding
abortion is usually desirable and in the best interests of the
The Legislature further finds in accordance with the U. S.
Supreme Court's decision in Bellotti v. Baird, 443 U. S. 622
(1979), and H. L. v. Matheson, 450 U. S. 398 (1981), that
there exists important and compelling state interests: (i) In
protecting minors against their own immaturity; (ii) in fostering
the family structure and preserving it as a viable social unit;
and (iii) in protecting the rights of parents to rear their own
children in their own household; and (iv) in protecting unborn
life throughout pregnancy.
It is, therefore, the intent of the Legislature to further
these interests, including the reasonable regulation of abortion
in accordance with current law by requiring parental consent
before an abortion involving an unemancipated minor may take
by enacting this parental notice provision.
For the purposes of this article, the following terms are
defined as follows:
(a) "Abortion" means the use of any means to terminate the pregnancy of a woman known to be pregnant with knowledge that the
termination by such means will, with reasonable likelihood, cause
the death of the fetus;
(b) "Fetus" means any individual human organism from
fertilization until birth.
§16-2F-3. Parental consent required for unemancipated mino
have an abortion.
No person may knowingly perform an abortion upon a pregnant
unemancipated minor unless the attending physician has secured
the written consent of the minor female and both parents of the
pregnant female, or in the event only one parent is living, or if
one parent's whereabouts is unknown and such parent cannot be
located by due diligence then the remaining parent, or in the
event no parents are living or available, then the guardian or
conservator of the unemancipated minor female.
No consent is required under this article in the event of
either of the following:
(a) The attending physician certifies in the medical record
that the abortion is necessary to prevent the death of the
pregnant female and there is insufficient time to obtain the required consent; or
(b) The pregnant female declares that she is a victim of
sexual abuse, neglect or physical abuse, and the attending
physician has notified the appropriate police department or other
governmental agency about the alleged sexual abuse, neglect or
Performance of an abortion in violation of this article is
a misdemeanor and shall also be grounds for a civil action by a
person wrongfully denied the right to consent. A person shall
not be held liable under this section if the person establishes
by reliable evidence that the person relied upon evidence
sufficient to convince a careful and prudent person that the
representations of the pregnant female were sufficient to rely
upon, as bona fide and true, in order to comply with this
section, or if the person has attempted with reasonable diligence
to obtain consent, but, due to no fault of him or herself, has
been unable to do so.
Upon conviction hereunder, a person is guilty of a
misdemeanor punishable by a fine, not to exceed five thousand
dollars, or by confinement in the regional jail for a period not more than six months, or by both such fine and confinement.
§16-2F-6. Substitute consent provisions.
(a) If section three of this article is ever determined to
be invalid by any court of competent jurisdiction, the following
paragraphs in this section shall be incorporated as additional
subsections of section three: Provided, That if such
determination of invalidity is thereafter reversed or otherwise
overturned, section three shall have full force and effect,
without being modified by the addition of the following
paragraphs, which shall then have no force or effect until or
unless section three is later, again, declared invalid by a court
of competent jurisdiction.
(b) If such consent is refused or cannot be obtained from
one or both of her parents or guardian or conservator, any judge
of a court of competent jurisdiction shall, upon petition or
motion, and after an appropriate hearing, authorize a physician
to perform the abortion if such judge determines that the
pregnant female is mature and capable of giving informed consent
to the proposed abortion. If the judge determines that the
pregnant female is not mature, or if the pregnant female does not
claim to be mature, the judge shall determine whether the performance of an abortion upon her without consent of her
parents, guardian or conservator would be in her best interests.
In the event the judge determines that the pregnant female's best
interest would be served by the performance of an abortion, he or
she shall authorize a physician to perform an abortion.
(c) A pregnant female may participate in judicial
proceedings on her own behalf, and the court may appoint a
guardian ad litem for her. The court shall, however, advise the
pregnant female that she has a right to court appointed counsel,
and shall, upon her request, provide her with such counsel.
(d) The pregnant female's parents, guardian or conservator
shall receive written notice of the pending proceeding, at least
twenty-four hours before it takes place. The notice shall be
addressed to the parent, guardian or conservator at their usual
place of abode. It shall be delivered personally to the parent
by the physician or an agent thereof. In lieu of the delivery
required herein, notice shall be made by certified mail,
addressed to the parent, guardian or conservator at their usual
place of abode with return receipt requested with restricted
delivery to the addressee. For the purpose of this section,
"restricted delivery" means that only a postal employee is authorized to deliver the notice to the addressee and that such
postal employee may only make the delivery of notice to the
particular addressee. In such case, the time of delivery shall
be deemed to occur at twelve o'clock noon on the next day on
which regular mail delivery takes place, subsequent to mailing.
The pregnant female's parents, guardian or conservator shall be
permitted to participate as parties in any judicial proceeding
held under the provisions of this article.
(e) Judicial proceedings held pursuant to this article shall
be confidential and, therefore, closed to the public. They shall
also be given precedence over other pending matters so that the
court may reach a decision promptly and without delay. This
shall serve the best interests of the pregnant female. A judge
who conducts proceedings under this article shall make written
factual findings and conclusions of law in support of the
decision he or she renders.
(f) An expedited confidential appeal shall be available to
any pregnant female to whom a court denies authorization for an
abortion without parental consent, or to the pregnant female's
parents, guardian or conservator when the court issues
authorization without their consent. No filing fees are required of any pregnant female under the provisions of this article
either in circuit court or in the supreme court of appeals of
this state. Access to the circuit court and access to the
appellate court for the purposes of effectuating the provisions
of this article shall be afforded twenty-four hours a day, seven
days a week.
NOTE: The purpose of this bill is to require parental
consent before an unemancipated minor may obtain an abortion
except in certain instances when obtaining such consent is not
feasible. The bill also requires the consent of a conservator or
guardian, in the event no parents are available to grant consent.
With the exception of section one,the article has been
completely rewritten; therefore all statutory language contained
in the various sections except section one is new; therefore,
strike-throughs and underscoring have been omitted in these
In section one strike-throughs indicate language that would
be stricken from the present law, and underscoring indicates new
language that would be added.