ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 283
(By Senators Anderson, Ross, Kessler, Minard, Edgell,

Boley,
Bailey, Facemyer, Minear, Oliverio, Sharpe, Love,
Craigo, Bowman, Deem, McKenzie, Sprouse, Unger, Prezioso, Helmick, Plymale and Fanning)
____________
[Originating in the Committee on Health and Human Resources;
reported February 13, 2002.]
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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 creating the "Women's Right to Know Act"; requiring informed consent for an abortion to be performed; exception for a medical emergency; requiring the department of health and human resources to publish information and develop a website on alternatives to abortion; requiring physicians to report abortion statistics; and penalties.

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. WOMEN'S RIGHT TO KNOW ACT.
§16-2I-1.

Short title.

This article shall be known and may be cited as the "Women's Right to Know Act".

§16-2I-2. Definitions.

As used in this article, 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)"Health care professional" means a physician licensed to practice in this state, a registered nurse, a licensed practical nurse, a physician's assistant, or any other health care professional licensed to practice in this state.

(d) "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.

(e) "Physician" means any medical doctor or osteopath licensed to practice medicine in this state.

(f) "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.

(g) "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 and human resources.
§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, danger to subsequent pregnancies and infertility, or any other medical risk;
(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 twenty-four 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 the website address.
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, then they shall either be given to her at least twenty- four hours before the abortion or 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 shall certify in writing, prior to the abortion, that the information described in

subsections (a) and (b) of this section, has been given to her, and that she has been informed of her opportunity to review the information referred to in subdivision (3), subsection (b) of this section.

(d) Copy of certification. -- Prior to performing the abortion, the physician who is to perform the abortion or the physician's agent shall receive a copy of the written certification prescribed by subsection (c) of this section.

Printed information.

(a) Alternatives to abortion and unborn development data. -- Within ninety days after this article is enacted, the department of health and human resources 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 and human resources, 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 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 procedure, the possible detrimental psychological effects of abortion, 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 article shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on the 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 and human resources upon request and in appropriate number to any person, facility or hospital.

The department of health and human resources shall develop and maintain a stable internet website to provide the information described under section four of this article. No information regarding who uses the website may be collected or maintained. The department of health and human resources 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 and human resources shall prepare a reporting form for physicians containing a reprint of this article and listing:
(1) The number of females to whom the physician provided the information described in subsection (a), section three of this article; 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), section three of this article; 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 of this article 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 the 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 division 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 subdivision (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, each physician who provided, or whose agent provided, information to one or more females in accordance with section three of this article, during the previous calendar year shall submit to the department of health and human resources, 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 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 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 the first day of August 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 (a) of this section. Each 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 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 providing information in accordance with subsection (a), (b) or (c) of this section.

(f) Modifications by legislative rule. -- The department of health and human resources 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 subdivision (3), subsection (b), or subsections (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) of this section is issued at least once every year.
§16-2I-8. Violation remedies.
(a) Any person, medical peer review committee, firm, corporation, member of the West Virginia board of medicine or public officer may make a complaint to the board of medicine charging a physician with a violation of this article.
(b) Any physician who violates the provisions of this article is subject to sanctions by the board of medicine. For the first violation, the board of medicine shall issue a written reprimand to the physician. For the second violation, the board of medicine shall suspend the physician's license for not less than thirty days. For the third violation, the board of medicine shall suspend the physician's license for not less than one year. For a subsequent violation, the board of medicine shall revoke the physician's license.