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)
[Originating in the Committee on Committee on the Judiciary;
reported January 22, 2003.]
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
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
ARTICLE 2I. INFORMED CONSENT PRIOR TO PERFORMANCE OF ABORTIONS.
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.
(c) "Physician" means any medical or osteopathic doctor
licensed to practice medicine in this state.
(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
(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
§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
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
(1) That medical assistance benefits may be available for
prenatal care, childbirth and neonatal care through governmental or
(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
(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
(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
(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;
(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
(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.
(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.)