H. B. 2216

(By Delegate Warner)

[Introduced January 14, 2003 ; referred to the

Committee on the Judiciary.]

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 abortions; defining certain terms; requiring advised consent for induced abortions; providing that inducing an abortion without advised consent is malpractice; subjecting an offending physician to sanctions; making an offending physician's license for the practice of medicine and surgery or osteopathy subject to suspension or revocation; providing an exception for informed consent in medical emergencies; and providing for distribution of certain printed materials concerning the product of conception at the various gestational stages, alternatives to abortion, programs and services available to a woman who chooses not to terminate her pregnancy.

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. ADVISED CONSENT FOR ABORTIONS.

§16-2I-1. Definitions.
For purposes of this article, unless the context clearly requires otherwise, the following words and phrases, and any variations of them required by the context, have the meanings ascribed to them in this section:
(1) "Abortion" means the deliberately induced termination of a woman's pregnancy by the outside intervention of a physician, other than with the intent to cause a live birth. As used in this article, the word "abortion" is a limited legal term. It is not to have attributed to it its broader medical meaning or definition, and does not include a spontaneous abortion or a traumatic abortion. Abortion does not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulation, fertilization or the implantation of a fertilized ovum within the uterus.
(2) "Conception" or "fertilization" means a process that consists of the penetration and impregnation of the female reproductive cell (the ovum) by the male reproductive cell (the spermatozoon), and their subsequent fusion.
(3) "Department" means the department of health and human resources.
(4) "Facility" or "medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center or other institution or location in which persons receive medical care.
(5) "Iatrogenic trauma" means trauma inflicted on a patient while a physician is administering professional medical care to the patient.
(6) "Medical emergency" means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of death or substantial and irreversible impairment of a major bodily function.
(7) "Medical personnel" means any nurse, nurse's aide, medical school student, professional or any other person who furnishes, or assists in the furnishing of, medical care.
(8) "Physician" means a medical doctor or a doctor of osteopathy licensed to practice in this state.
(9) "Pregnancy" means the condition of a woman having an embryo or fetus in her body, usually in the uterus, commencing with conception. The provisions of this article are not applicable to an ectopic pregnancy.
(10) "Spontaneous abortion" means the termination of a woman's pregnancy that occurs without intentional intervention.
(11) "Traumatic abortion" means an unintentional termination of the pregnancy of a woman that has been caused by accidental injury, iatrogenic trauma or psychological stress.
§16-2I-2. Advised consent.
(a) A physician shall obtain the advised consent of his or her patient before ending the patient's pregnancy by inducing an abortion. Advised consent is reached through consultation, counseling and the use of informational and educational materials by the physician and the patient. Consent to an abortion is advised consent if the physician or his or her medical personnel and the patient discharge the following responsibilities, facilitating an exchange of information and questions that culminates in the patient's agreement to a specific medical or surgical intervention:
(1) The physician solicits from the patient the information necessary to decide the choice of a proposed procedure and to adapt the disclosure of risks and benefits to the particular patient;
(2) The physician tells the patient how long she has been pregnant and the probable gestational age at the time the abortion is to be induced;
(3) The physician discusses with the patient the choice of the specific procedure proposed to end the patient's pregnancy and explains how the procedure will be performed;
(4) The physician discusses with the patient the medical indications for the procedure, if any, including both fetal and maternal indications;
(5) The physician discusses with the patient any reasonably foreseeable risks, complications or discomforts that the patient may experience, as well as the possible benefits associated with the procedure;
(6) The physician explains to the patient any reasonable alternative procedure or treatment that might be beneficial to the patient;
(7) The physician affords the patient the opportunity to ask any questions she may have regarding the procedure and attempts to answer the questions to the patient's satisfaction;
(8) The physician ascertains that the patient was provided with the informational materials described in section four of this article at some time after conception but before the twenty-four-hour period immediately preceding the time when the procedure is to be performed;
(9) The physician informs the patient that consent must be voluntarily given, explains to the patient that consent may be withdrawn by her until a particular time in her treatment, and accurately describes that time as it pertains to her procedure;
(10) The patient provides information to the physician or his or her medical personnel which is, within the patient's knowledge, accurate and complete; and
(11) The patient certifies in writing, before the procedure is performed:
(A) That the procedure to be performed has been identified and that she has been informed how it is to be performed;
(B) That she has been informed of physical and psychological risks, complications or discomforts that she may experience, associated with her condition;
(C) That reasonable alternate procedures or treatments, if any, have been explained to her;
(D) That any questions that she may have had regarding the procedure have been answered to her satisfaction;
(E) That the information required to be provided to her in accordance with section four of this article has been provided; and
(F) That she voluntarily and freely authorizes the physician to perform the procedure.
(b) Based upon the facts of the particular case and the individual patient's health and prior medical history, a physician is not required to make a candid disclosure of risk information to a patient as required by subdivisions (5) and (7), subsection (a) of this section if the physician reasonably believes that furnishing the information may jeopardize the patient's physical or psychological health.
(c) Inducing an abortion without advised consent is malpractice when a physician violates the provisions of this article by not carrying out the responsibilities imposed on him or her under this article. An offending physician is subject to sanctions and his or her license for the practice of medicine and surgery or osteopathy is subject to suspension or revocation, according to procedures provided for in article three or fourteen, chapter thirty of this code.
§16-2I-3. Medical emergency.
As an exception to the general rule requiring informed or advised consent, the facts of a particular case may establish that a medical emergency exists, requiring an abortion to be induced. In that case, the physician shall inform the patient before the procedure, if possible, of the medical indications supporting the judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
§16-2I-4. Informational materials.
(a) On or before the first day of September, two thousand three, the department shall publish printed materials suitable for distribution by medical personnel to persons who may be considering having an induced abortion. The department shall review the materials at least annually, and shall update them as necessary so that they are current, objectively accurate and comprehensible. The materials shall be objective, nonjudgmental and designed to convey only accurate information about the product of conception at the various gestational stages, the alternatives to abortion, and the programs and services available to a woman who chooses not to terminate her pregnancy.
(1) The department shall make available a pamphlet or chart describing the anatomical and physiological characteristics of a pregnant female and the product of conception at two-week gestational increments from conception through a full-term delivery. The description shall be illustrated pictorially by a series of photographs or drawings that depict the development of the product of conception at two-week gestational increments.
(2) The department shall make available geographically indexed lists of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies. The lists shall name the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they may be contacted: Provided, That, in addition to these lists, the department may publish in the printed materials a toll-free, twenty-four-hour-a-day telephone number which persons can call to obtain a recorded message that provides the information.
(3) The department shall make available materials that provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care.
(4) The department shall make available materials that describe the obligation of a father to support his child, explain how to establish paternity, how to obtain an order for the payment of child support, and how to enforce child support orders.
(5) The department shall make available materials that advise a woman of basic legal concepts, stating it is unlawful for any individual to coerce a woman to undergo abortion, and that any physician who performs an abortion upon a woman without obtaining her advised consent may be liable to her for damages in a civil action at law.
(b) A physician may not terminate a patient's pregnancy unless she was provided with the materials described in this section at a time after her conception but before the twenty-four-hour period immediately preceding the time when the procedure is to be performed.
(c) A physician, medical facility or medical personnel shall provide a person with the printed materials made available by the department, free of charge.
(d) The department shall print the materials in a typeface large enough to be clearly legible.
(e) The materials required under this section must be available at no cost from the department upon request and in appropriate number to any person, physician, facility or medical personnel. A physician or facility, at its own cost, may use accurate duplications of the materials made available by the department for distribution as required by this section.
(f) Persons providing the materials described in this section, whether acting as an assistant or agent of a physician or acting as a person independent of a physician, are prohibited from disclosing to third persons the fact that a woman has received the materials and may be pregnant or contemplating an abortion. The request by a woman for materials is confidential and the fact that this request was made may only be communicated to a physician whose relationship with the woman is that of physician and patient. A violation of this subsection is an invasion of the woman's right of privacy and gives rise to a cause of action. In any action for an invasion of the right of privacy under this section, it may not be necessary to show that the unauthorized disclosure was made maliciously.



NOTE: The purpose of this bill is to require advised consent for induced abortions. It provides that inducing an abortion without advised consent is malpractice and subjects an offending physician to sanctions, making an offending physician's license for the practice of medicine and surgery or osteopathy subject to suspension or revocation. It provides an exception for informed consent in medical emergencies; and for distribution of certain printed materials concerning the product of conception at the various gestational stages, alternatives to abortion, and programs and services available to a woman who chooses not to terminate her pregnancy.

This article is new; therefore, strike-throughs and underscoring have been omitted.