H. B. 3002
(By Mr. Speaker, Mr. Kiss, and Delegate Warner)
[Introduced March 26, 2001; Referred to the
Committee on Health and Human Resources.]
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
woman's right to be informed of all alternatives and risks
relating to unnatural termination of pregnancy; setting forth
definitions; requiring voluntary and informed consent prior to
abortion; specifying required information; requiring the
department of health to publish and make available certain
informational materials; requiring development of internet
website; setting forth procedure in case of medical emergency;
setting forth reporting requirements; setting forth civil
remedies; protection of privacy in court proceedings;
providing civil remedies and penalties; and severability.
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, by adding thereto a
new article, designated article two-i, to read as follows:
ARTICLE 2I. WOMAN'S RIGHT TO KNOW ACT
§16-2I-1.
Short title.
This Act shall be known and may be cited as the "Woman's Right
to Know Act."
§16-2I-2. Definitions.
As used in this Act, the term:
(a) "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 an
intention other than to increase the probability of a live birth,
to preserve the life or health of the child after live birth, or to
remove a dead fetus.
(b) "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 violation of this article.
(c) "Medical emergency" means any 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 serious risk of substantial and irreversible impairment of a major bodily function.
(d) "Physician" means any medical doctor or osteopath licensed
to practice medicine in this state.
(e) "Probable gestational age of the unborn child" means what,
in the judgment of the physician, will with reasonable probability
be the gestational age of the unborn child at the time the abortion
is planned to be performed.
(f) "Stable internet website" means a website that, to the
extent reasonably practicable, is safeguarded from having its
content altered other than by the department of health.
§16-2I-3.
Informed consent.
No abortion may be performed in this state except with the
voluntary and informed consent of the female upon whom the abortion
is to be performed. Except in the case of a medical emergency,
consent to an abortion is voluntary and informed if and only if:
(a) Information which must be provided by physician. - The
female is told the following, by telephone or in person, by the
physician who is to perform the abortion or by a referring
physician, at least twenty-four hours before the abortion:
(1) The name of the physician who will perform the abortion;
(2) The particular medical risks associated with the
particular abortion procedure to be employed including, when
medically accurate, the risks of infection, hemorrhage, breast
cancer, danger to subsequent pregnancies, and infertility;
(3) The probable gestational age of the unborn child at the
time the abortion is to be performed; and
(4) The medical risks associated with carrying her child to
term.
The information required by this subsection may be provided by
telephone without conducting a physical examination or tests of the
patient, in which case the information required to be provided may
be based on facts supplied the physician by the female and whatever
other relevant information is reasonably available to the
physician. It may not be provided by a tape recording, but must be
provided during a consultation in which the physician is able to
ask questions of the female and the female is able to ask questions
of the physician. If a physical examination, tests, or the
availability of other information to the physician subsequently
indicate, in the medical judgment of the physician, a revision of
the information previously supplied to the patient, that revised
information may be communicated to the patient at any time prior to
the performance of the abortion. Nothing in this section may be
construed to preclude provision of required information in a
language understood by the patient through a translator.
(b) Information which may be provided by agent of physician.
- The female is informed, by telephone or in person, by the
physician who is to perform the abortion, by a referring physician,
or by an agent of either physician at least 24 hours before the abortion:
(1) That medical assistance benefits may be available for
prenatal care, childbirth, and neonatal care;
(2) That the father is liable to assist in the support of her
child, even in instances in which the father has offered to pay for
the abortion; and
(3) That she has the right to review the printed materials
described in section four of this article, that these materials are
available on a state-sponsored website, and what the website
address is. The physician or the physician's agent shall orally
inform the female that the materials have been provided by the
State of West Virginia and that they describe the unborn child and
list agencies which offer alternatives to abortion. If the female
chooses to view the materials other than on the website, they shall
either be given to her at least twenty-four hours before the
abortion, mailed to her at least seventy-two hours before the
abortion by certified mail, restricted delivery to addressee, which
means the postal employee can only deliver the mail to the
addressee.
The information required by this subsection may be provided by
a tape recording if provision is made to record or otherwise
register specifically whether the female does or does not choose to
have the printed materials given or mailed to her.
(c) Certification required. - The female certifies in writing, prior to the abortion, that the information described in
subsections (a) and (b) of this section has been furnished her, and
that she has been informed of her opportunity to review the
information referred to in paragraph (3) of subsection (b) of this
section.
(d) Copy of certification. - Prior to the performance of the
abortion, the physician who is to perform the abortion or the
physician's agent receives a copy of the written certification
prescribed by subsection (c) of this section.
§16-2I-4.
Printed information.
(a) Alternatives to abortion and unborn development data. -
Within ninety days after this act is enacted, the department of
health shall cause to be published, in English and in each language
which is the primary language of two percent or more of the state's
population, and shall cause to be available on the state website
provided for in section five of this article, the following printed
materials in such a way as to ensure that the information is easily
comprehensible:
(1) Geographically indexed materials designed to inform the
female of public and private agencies and services available to
assist a female through pregnancy, upon childbirth, and while the
child is dependent, including adoption agencies, which shall
include a comprehensive list of the agencies available, a
description of the services they offer, and a description of the manner, including telephone numbers, in which they might be
contacted or, at the option of the department of health, printed
materials including a toll-free, twenty-four hour a day telephone
number which may be called to obtain, orally, such a list and
description of agencies in the locality of the caller and of the
services they offer; and
(2) Materials designed to inform the female of the probable
anatomical and physiological characteristics of the unborn child at
two-week gestational increments from the time when a female can be
known to be pregnant to full term, including any relevant
information on the possibility of the unborn child's survival and
pictures or drawings representing the development of unborn
children at two-week gestational increments, provided that any such
pictures or drawings must contain the dimensions of the fetus and
must be realistic and appropriate for the stage of pregnancy
depicted. The materials shall be objective, nonjudgmental, and
designed to convey only accurate scientific information about the
unborn child at the various gestational ages. The material shall
also contain objective information describing the methods of
abortion procedures commonly employed, the medical risks commonly
associated with each such procedure, the possible detrimental
psychological effects of abortion and the medical risks commonly
associated with each such procedure and the medical risks commonly
associated with carrying a child to term.
(b) Legibility. - The materials referred to in subsection (a)
of this section shall be printed in a typeface large enough to be
clearly legible. The website provided for in section five of this
Act shall be maintained at a minimum resolution of seventy dots per
inch. All pictures appearing on this website shall be a minimum of
200x300 pixels. All letters on the website shall be a minimum of
eleven point font. All information and pictures shall be
accessible with an industry standard browser, requiring no
additional plug-ins.
(c) Availability. - The materials required under this
section shall be available at no cost from the department of health
upon request and in appropriate number to any person, facility, or
hospital.
§16-2I-5. Internet website.
The department of health shall develop and maintain a stable
internet website to provide the information described under section
four. No information regarding who uses the website shall be
collected or maintained. The department of health shall monitor the
website on a daily basis to prevent and correct tampering.
§16-2I-6. Procedure in case of medical emergency.
When a medical emergency compels the performance of an
abortion, the physician shall inform the female, prior to the
abortion if possible, of the medical indications supporting the
physician's judgment that an abortion is necessary to avert her death or that a twenty-four hour delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
§16-2I-7. Reporting requirements.
(a) Reporting form. - Within ninety days after this article
is enacted, the department of health shall prepare a reporting form
for physicians containing a reprint of this Act and listing:
(1) the number of females to whom the physician provided the
information described in subsection (a) of section three; of that
number, the number provided by telephone and the number provided in
person; and of each of those numbers, the number provided in the
capacity of a referring physician and the number provided in the
capacity of a physician who is to perform the abortion;
(2) the number of females to whom the physician or an agent of
the physician provided the information described in subsection (b)
of section three; of that number, the number provided by telephone
and the number provided in person; of each of those numbers, the
number provided in the capacity of a referring physician and the
number provided in the capacity of a physician who is to perform
the abortion; and of each of those numbers, the number provided by
the physician and the number provided by an agent of the physician;
(3) the number of females who availed themselves of the
opportunity to obtain a copy of the printed information described
in section four other than on the website, and the number who did
not; and of each of those numbers, the number who, to the best of the reporting physician's information and belief, went on to obtain
the abortion; and
(4) the number of abortions performed by the physician in
which information otherwise required to be provided at least
twenty-four hours before the abortion was not so provided because
an immediate abortion was necessary to avert the female's death,
and the number of abortions in which such information was not so
provided because a delay would create serious risk of substantial
and irreversible impairment of a major bodily function.
(b) Distribution of forms. - The department of health shall
ensure that copies of the reporting forms described in subsection
(a) of this section are provided:
(1) Within one hundred twenty days after this article is
enacted, to all physicians licensed to practice in this State;
(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; and
(3) By the first day of December of each 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.
(c) Reporting requirement. - 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, information to one or more females in
accordance with section three during the previous calendar year
shall submit to the department of health a copy of the form
described in subsection (a) of this section, with the requested
data entered accurately and completely.
(d) Failure to report as required. - Reports that are not
submitted by the end of a grace period of thirty days following the
due date shall be 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 department of health, be
directed by a court of competent jurisdiction to submit a complete
report within a period stated by court order or be subject to
sanctions for civil contempt.
(e) Public statistics. - By of each year the department of
health 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 (a) of this section. Each such report
shall also provide the statistics for all previous calendar years,
adjusted to reflect any additional information from late or corrected reports. The department of health shall take care to
ensure that none of the information included in the public reports
could reasonably lead to the identification of any individual
provided information in accordance with subsections (a) or (b) of
subsection (c).
(f) Modifications by regulation. - The department of health
may propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
which alter the dates established by subsections (b)(3), (c) or (e)
of this section or consolidate the forms or reports described in
this section with other 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 (e) is issued at least once every year.
§16-2I-8. Civil remedies.
(a) Civil suits for violation. - Any person upon whom an
abortion has been performed without complying with this article may
maintain an action against the person who performed the abortion in
knowing or reckless violation of the provisions of this article for
actual and punitive damages. Any person upon whom an abortion has
been attempted without complying with the provisions of this
article may maintain an action against the person who attempted to
perform the abortion in knowing or reckless violation of this article for actual and punitive damages.
(b) Suit to compel statistical report. - If the department of
health fails to issue the public report required by subsection (e)
of section six of this article, any group of ten or more citizens
of this state may seek an injunction in a court of competent
jurisdiction against the director of the department of health
requiring that a complete report be issued within a period stated
by court order.
(c) Attorney's fee. - 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.
§16-2I-9. Protection of privacy in court proceedings.
In every civil action brought under this article, the court
shall rule whether the anonymity of any female upon whom an
abortion has been performed or attempted shall be preserved from
public disclosure if she does not give her consent to such
disclosure. The court, upon motion or sua sponte, shall make such
a ruling and, upon determining that her anonymity should be
preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of
individuals from courtrooms or hearing rooms to the extent
necessary to safeguard her identity from public disclosure. Each
such order shall be accompanied by specific written findings
explaining why the anonymity of the female should be preserved from
public disclosure, why the order is essential to that end, how the
order is narrowly tailored to serve that interest, and why no
reasonable less restrictive alternative exists. In the absence of
written consent of the female upon whom an abortion has been
performed or attempted, anyone, other than a public official, who
brings an action under subsection (a) of section 8 shall do so
under a pseudonym. This section may not be construed to conceal
the identity of the plaintiff or of witnesses from the defendant.
§16-2I-10. 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 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 more provision, section, subsection, sentence,
clause, phrase, or word be declared unconstitutional.
NOTE: The purpose of this bill is to require certain
information be provided to women with respect to abortion.
This article is new; therefore underlining and strike throughs
have been omitted.