SB170 SUB1

COMMITTEE SUBSTITUTE
for

Senate Bill No. 170

(By Senators Kessler, Prezioso, Ross, Minard, Sharpe, Unger, Plymale, Weeks, Oliverio, Boley, Facemyer, Love, Bailey, Minear, Harrison, McKenzie, Sprouse, Bowman, Edgell, Deem, Guills, Dempsey, Helmick, Hunter, Fanning and Smith)

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[Originating in the Committee on Committee on the Judiciary;
reported January 22, 2003.]
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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 requiring informed consent for an abortion to be performed; requiring certain information to be supplied to women considering abortion; establishing minimum waiting period for abortions after having been supplied information; exception for a medical emergency; rulemaking; reporting requirement; requiring the secretary of the department of health and human resources to publish information and develop a website on alternatives to abortion; protection of privacy court proceedings; administrative remedies; criminal offenses; 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. INFORMED CONSENT PRIOR TO PERFORMANCE OF ABORTIONS.
§16-2I-1. Definitions.

For the purposes of this article, the words or phrases defined in this section have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

(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) "Medical emergency" means any condition which, on the basis of a physician's good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy to avert her death or to avoid serious risk of substantial and irreversible physical impairment to her.

(d) "Probable gestational age of the fetus means what, in the judgment of the physician, will with reasonable probability be the gestational age of the fetus at the time the abortion is planned to be performed.

(e) "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-2. 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 known medical risks associated with the particular abortion procedure to be employed;

(3) The probable gestational age of the fetus at the time the abortion is to be performed; and

(4) The medical risks associated with carrying the fetus 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 procedure.

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 procedure:

(1) That medical assistance benefits may be available for prenatal care, childbirth and neonatal care through governmental or private entities;

(2) That the father, if his identity can be determined, is liable to assist in the support of her child based upon his ability to pay, 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 three of this article, that these materials are available on a stable website and the website address.

The physician or an agent of the physician shall orally inform the female that the materials describe the fetus and list agencies and entities which offer alternatives to abortion.

If the female chooses to view the materials other than on the website, then they shall either be provided 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 provided 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 procedure, the physician who is to perform the abortion or the physician's agent shall obtain a copy of the executed certification required by the provisions of subsection (c) of this section.
§16-2I-3. Printed information.

(a) Alternatives to abortion and unborn development data. -- Within ninety days of the effective date of this article, the secretary of 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 as determined by the most recent decennial census performed by the U.S. Census Bureau, and shall cause to be available on the website provided for in section four 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 reader 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. At the option of the secretary of health and human resources, a 24-hour a day telephone number may be established with the number being published in such a way as to maximize public awareness of its existence which may be called to obtain 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 fetus 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 fetus' survival and pictures or drawings representing the development of a fetus 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 fetus 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 medically recommended 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.
§16-2I-4. Internet website.

The secretary of the department of health and human resources shall develop and maintain a stable internet website to provide the information required to be provided pursuant to the provisions of section two of this article. No information regarding persons visiting the website may be collected or maintained. The secretary of the department of health and human resources shall monitor the website on a daily basis to prevent and correct tampering.
§16-2I-5. 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 to avoid serious risk of substantial and irreversible physical impairment to the female.
§16-2I-6.Authorization for rule making.
The secretary of 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 to effectuate the purposes of this article.
§16-2I-7. Protection of privacy in court proceedings.

In every civil or criminal proceeding or 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 nine 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-8. Reporting requirements.

(a) Reporting form. -- Within ninety days of the effective date of this article, the secretary of 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 two 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 two 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 three 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 secretary of the department of health and human resources shall ensure that copies of the reporting forms described in subsection (a) of this section are provided:

(1) Within one hundred twenty days after the effective date of this article 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 act was in effect, 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 secretary of 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 secretary of 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 secretary of 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 secretary of 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 physician who performed or treated an abortion, or any mother who has had an abortion, in accordance with subsection (a), (b) or (c) of this section.

(f) Modifications by legislative rule. -- The secretary of 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 subsection (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-9. Administrative remedies.

(a) Any person or entity may make a complaint to the licensing board, if any, of a person whose conduct is regulated by the provisions of this article and may charge such person with a violation of this article.

(b) Any physician or agent thereof who violates the provisions of this article is subject to sanctions by the licensing board governing his or her profession. For the first violation, the licensing board shall issue a written reprimand to the violator. For the second violation, the licensing board shall suspend the violator's license for not less than thirty days nor more than ninety days. For the third violation, the licensing board shall suspend the violator's license for not less than one year nor more than five years. For a subsequent violation, the licensing board shall revoke the violator's license.
§16-2I-10. Criminal offenses; penalties.
(a) Any physician or agent thereof who performs or attempts to perform an abortion or assist therein while willfully failing to comply with the provisions of this article shall be guilty of a misdemeanor and upon conviction shall be confined in a county or regional jail for not more than one year; fined not more than five thousand dollars, or both: Provided That the provisions of this subjection shall only apply to persons who have been previously sanctioned by a licensing board for failure to comply with the provisions of this article.

(b) Any physician or agent thereof who performs or attempts to perform an abortion or assist therein while willfully failing to comply with the provisions of this article who has previously been convicted of a violation of subsection (a) of this section shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary for not less than one nor more than five years, fined not less than five thousand nor more than ten thousand dollars, or both.
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(NOTE: The purpose of this bill is to require informed consent for an abortion to be performed.

Article two-i, chapter sixteen is new; therefore, strike- throughs and underscoring have been omitted.)