H. B. 4650
(By Delegates L. Smith (By Request), Hall (By Request)
, Walters,
Armstead, Carmichael and Trump)
[Introduced February 22, 2002
; referred to the
Committee on Finance.]
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"; providing
definitions; requiring informed consent for abortion to be
performed; requiring the division of health to publish
information of alternatives to abortion; requiring development
of website by division of health; abortions performed in
medical emergency; physicians reporting requirements; and
violation remedies.
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) "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 division 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 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, 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 subdivision (3), 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 division 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 division 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
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
article 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 division of health upon
request and in appropriate number to any person, facility or
hospital.
§16-2I-5. Internet website.
The division of health 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 division 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 division of health 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 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 division 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 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 division 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 the first day of August of each
year the division 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 report shall also provide the statistics for all
previous calendar years, adjusted to reflect any additional
information from late or corrected reports. The division 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 subsection
(a), (b) or (c) of this section.
(f) Modifications by legislative rule. -- The division 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 subdivision (3),
subsection (b), (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.
Any person, medical peer review committee, firm, corporation,
member of the West Virginia board of medicine or public officer may
make a complaint in accordance with 11csr 3 to the West Virginia
board of medicine which charges a health care professional with a
violation of this act.
Failure to comply with any provision of this act shall be
sufficient ground and reason for the revocation of the license of
such health care professional and upon such finding the license
shall be revoked.
The term "health care professional" means physicians licensed
to practice in this state, a registered nurse, licensed practical
nurse, physician's assistant, or other health care professional
licensed to practice in this state.
NOTE: The purpose of this bill is to create the "Women's
Right To Know Act." It provides definitions; requires informed
consent for abortion to be performed; and requires the division of
health to publish information of alternatives to abortion. It also
requires the development of a medical and abortion information
website by the division of health. It sets out guidelines for
abortions performed in medical emergency; provides physicians'
reporting requirements; and provides violation remedies.
This article is new; therefore, strike-throughs and
underscoring have been omitted.