H. B. 2164
(By Delegates Warner and Pettit)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-i, relating to
abortions; defining certain terms; requiring advised consent
for induced abortions; providing that inducing an abortion
without advised consent is malpractice; subjecting an
offending physician to sanctions; making an offending
physician's license for the practice of medicine and surgery
or osteopathy subject to suspension or revocation; providing
an exception for informed consent in medical emergencies;
and providing for distribution of certain printed materials
concerning the product of conception at the various
gestational stages, alternatives to abortion, programs and
services available to a woman who chooses not to terminate
her pregnancy.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two-i, to read
as follows:
ARTICLE 2I. ADVISED CONSENT FOR ABORTIONS.
§16-2I-1. Definitions.
For purposes of this article, unless the context clearly
requires otherwise, the following words and phrases, and any
variations of them required by the context, shall have the
meanings ascribed to them in this section:
(1) "Abortion" means the deliberately induced termination of
a woman's pregnancy by the outside intervention of a physician,
other than with the intent to cause a live birth. As used in
this article, the word "abortion" is a limited legal term. It is
not to have attributed to it its broader medical meaning or
definition, and does not include a spontaneous abortion or a
traumatic abortion. Abortion does not mean the use of an
intrauterine device or birth control pill to inhibit or prevent
ovulation, fertilization or the implantation of a fertilized ovum
within the uterus.
(2) "Conception" or "fertilization" means a process that
consists of the penetration and impregnation of the female reproductive cell (the ovum) by the male reproductive cell (the
spermatozoon), and their subsequent fusion.
(3) "Department" means the department of health and human
resources.
(4) "Facility" or "medical facility" means any public or
private hospital, clinic, center, medical school, medical
training institution, health care facility, physician's office,
infirmary, dispensary, ambulatory surgical treatment center or
other institution or location in which persons receive medical
care.
(5) "Iatrogenic trauma" means trauma inflicted on a patient
while a physician is administering professional medical care to
the patient.
(6) "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 woman as to
necessitate the immediate termination of her pregnancy to avert
her death or for which a delay will create serious risk of death
or substantial and irreversible impairment of a major bodily
function.
(7) "Medical personnel" means any nurse, nurse's aide,
medical school student, professional or any other person who
furnishes, or assists in the furnishing of, medical care.
(8) "Physician" means a medical doctor or a doctor of osteopathy licensed to practice in this state.
(9) "Pregnancy" means the condition of a woman having an
embryo or fetus in her body, usually in the uterus, commencing
with conception. The provisions of this article are not
applicable to an ectopic pregnancy.
(10) "Spontaneous abortion" means the termination of a
woman's pregnancy that occurs without intentional intervention.
(11) "Traumatic abortion" means an unintentional termination
of the pregnancy of a woman that has been caused by accidental
injury, iatrogenic trauma or psychological stress.
§16-2I-2. Advised consent.
(a) A physician shall obtain the advised consent of his or
her patient before ending the patient's pregnancy by inducing an
abortion. Advised consent is reached through consultation,
counseling and the use of informational and educational materials
by the physician and the patient. Consent to an abortion is
advised consent if the physician or his or her medical personnel
and the patient discharge the following responsibilities,
facilitating an exchange of information and questions that
culminates in the patient's agreement to a specific medical or
surgical intervention:
(1) The physician solicits from the patient the information
necessary to decide the choice of a proposed procedure and to
adapt the disclosure of risks and benefits to the particular patient;
(2) The physician tells the patient how long she has been
pregnant and the probable gestational age at the time the
abortion is to be induced;
(3) The physician discusses with the patient the choice of
the specific procedure proposed to end the patient's pregnancy
and explains how the procedure will be performed;
(4) The physician discusses with the patient the medical
indications for the procedure, if any, including both fetal and
maternal indications;
(5) The physician discusses with the patient any reasonably
foreseeable risks, complications or discomforts that the patient
may experience, as well as the possible benefits associated with
the procedure;
(6) The physician explains to the patient any reasonable
alternative procedure or treatment that might be beneficial to
the patient;
(7) The physician affords the patient the opportunity to ask
any questions she may have regarding the procedure and attempts
to answer the questions to the patient's satisfaction;
(8) The physician ascertains that the patient was provided
with the informational materials described in section four of
this article at some time after conception but before the
twenty-four-hour period immediately preceding the time when the procedure is to be performed;
(9) The physician informs the patient that consent must be
voluntarily given, explains to the patient that consent may be
withdrawn by her until a particular time in her treatment, and
accurately describes that time as it pertains to her procedure;
(10) The patient provides information to the physician or
his or her medical personnel which is, within the patient's
knowledge, accurate and complete; and
(11) The patient certifies in writing, before the procedure
is performed:
(A) That the procedure to be performed has been identified
and that she has been informed how it is to be performed;
(B) That she has been informed of physical and psychological
risks, complications or discomforts that she may experience,
associated with her condition;
(C) That reasonable alternate procedures or treatments, if
any, have been explained to her;
(D) That any questions that she may have had regarding the
procedure have been answered to her satisfaction;
(E) That the information required to be provided to her in
accordance with section four of this article has been provided;
and
(F) That she voluntarily and freely authorizes the physician
to perform the procedure.
(b) Based upon the facts of the particular case and the
individual patient's health and prior medical history, a
physician is not required to make a candid disclosure of risk
information to a patient as required by subdivisions (5) and (7),
subsection (a) of this section if the physician reasonably
believes that furnishing the information may jeopardize the
patient's physical or psychological health.
(c) Inducing an abortion without advised consent is
malpractice when a physician violates the provisions of this
article by not carrying out the responsibilities imposed on him
or her under this article. An offending physician is subject to
sanctions and his or her license for the practice of medicine and
surgery or osteopathy shall be subject to suspension or
revocation, according to procedures provided for in article three
or fourteen, chapter thirty of this code.
§16-2I-3. Medical emergency.
As an exception to the general rule requiring informed or
advised consent, the facts of a particular case may establish
that a medical emergency exists, requiring an abortion to be
induced. In such case, the physician shall inform the patient
before the procedure, if possible, of the medical indications
supporting the judgment that an abortion is necessary to avert
her death or to avert substantial and irreversible impairment of
major bodily function.
§16-2I-4. Informational materials.
(a) On or before the first day of September, one thousand
nine hundred ninety-seven, the department shall publish printed
materials suitable for distribution by medical personnel to
persons who may be considering having an induced abortion. The
department shall review the materials at least annually, and
shall update them as necessary so that they are current,
objectively accurate and comprehensible. The materials shall be
objective, nonjudgmental and designed to convey only accurate
information about the product of conception at the various
gestational stages, the alternatives to abortion, and the
programs and services available to a woman who chooses not to
terminate her pregnancy.
(1) The department shall make available a pamphlet or chart
describing the anatomical and physiological characteristics of a
pregnant female and the product of conception at two-week
gestational increments from conception through a full-term
delivery. The description shall be illustrated pictorially by a
series of photographs or drawings that depict the development of
the product of conception at two-week gestational increments.
(2) The department shall make available geographically
indexed lists of public and private agencies and services
available to assist a woman through pregnancy, upon childbirth
and while the child is dependent, including adoption agencies. The lists shall name the agencies available, a description of the
services they offer and a description of the manner, including
telephone numbers, in which they may be contacted: Provided,
That, in addition to such lists, the department may publish in
the printed materials a toll-free, twenty-four-hour-a-day
telephone number which persons can call to obtain a recorded
message that provides the information.
(3) The department shall make available materials that
provide information on the availability of medical assistance
benefits for prenatal care, childbirth and neonatal care.
(4) The department shall make available materials that
describe the obligation of a father to support his child, explain
how to establish paternity, how to obtain an order for the
payment of child support, and how to enforce child support
orders.
(5) The department shall make available materials that
advise a woman of basic legal concepts, stating it is unlawful
for any individual to coerce a woman to undergo abortion, and
that any physician who performs an abortion upon a woman without
obtaining her advised consent may be liable to her for damages in
a civil action at law.
(b) A physician shall not terminate a patient's pregnancy
unless she was provided with the materials described in this
section at a time after her conception but before the twenty-four-hour period immediately preceding the time when the
procedure is to be performed.
(c) A physician, medical facility or medical personnel shall
provide a person with the printed materials made available by the
department, free of charge.
(d) The department shall print the materials in a typeface
large enough to be clearly legible.
(e) The materials required under this section shall be
available at no cost from the department upon request and in
appropriate number to any person, physician, facility or medical
personnel. A physician or facility, at its own cost, may use
accurate duplications of the materials made available by the
department for distribution as required by this section.
(f) Persons providing the materials described in this
section, whether acting as an assistant or agent of a physician
or acting as a person independent of a physician, are prohibited
from disclosing to third persons the fact that a woman has
received the materials and may be pregnant or contemplating an
abortion. The request by a woman for materials is confidential
and the fact that this request was made may only be communicated
to a physician whose relationship with the woman is that of
physician and patient. A violation of this subsection is an
invasion of the woman's right of privacy and gives rise to a
cause of action. In any action for an invasion of the right of privacy under this section, it may not be necessary to show that
the unauthorized disclosure was made maliciously.
NOTE: The purpose of this bill is to
require advised
consent for induced abortions. It provides that inducing an
abortion without advised consent is malpractice and subjects an
offending physician to sanctions, making an offending physician's
license for the practice of medicine and surgery or osteopathy
subject to suspension or revocation. It provides an exception
for informed consent in medical emergencies; and for distribution
of certain printed materials concerning the product of conception
at the various gestational stages, alternatives to abortion, and
programs and services available to a woman who chooses not to
terminate her pregnancy.
This article is new; therefore, strike-throughs and
underscoring have been omitted.