Senate Bill No. 519

(By Senators Prezioso, Unger, Fanning, Tomblin, Mr. President, Love, Kessler, Minard, Harrison, Bowman, Plymale, Jenkins, Yoder, Guills, Bailey, Chafin, McKenzie, Hunter, Facemyer, Weeks, Barnes, Edgell, Oliverio, Sharpe, Caruth, Dempsey, Sprouse, Minear, Boley, Deem, White and Helmick)

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[Introduced February 7, 2006; referred to the Committee

on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and §16-2F-9 of the Code of West Virginia, 1931, as amended, all relating to parental notification requirements for abortions performed on unemancipated minors; defining terms; providing for a waiver; requiring notice to minors of a right to petition the family court; reporting requirements; providing remedies; specifying when notice is not required; providing penalties; and providing a severability clause.

Be it enacted by the Legislature of West Virginia:
That §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and §16-2F-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.

§16-2F-2. Definitions.

For purposes of this article, unless the context in which used clearly requires otherwise:
(1) "Abortion" means the intentional use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a female known to be pregnant, with knowledge that the termination with those means will, with reasonable likelihood, cause the expulsion of any embryo or fetus other than by live birth.
(1) "Minor" means any person under the age of eighteen years who has not graduated from high school.
(2) "Unemancipated minor" means any minor who is neither married nor who has not been emancipated as pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine of this code.
(3) (2) "Actual notice" means the giving of notice directly, in person or by telephone.
(4) (3) "Constructive notice" means the giving of notice by certified mail to the last known address of the parents or legal guardian, return receipt requested.
(5) "Abortion" means the use of any instrument, medicine, drug or any other substance or device with intent to terminate the pregnancy of a female known to be pregnant and with intent to cause the expulsion of a fetus other than by live birth: Provided, That nothing in this article shall be construed so as to prevent the prescription, sale or transfer of intrauterine contraceptive devices or other contraceptive devices or other generally medically accepted contraceptive devices, instruments, medicines or drugs for a female who is not known to be pregnant and for whom such contraceptive devices, instruments, medicines or drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the termination of a known pregnancy.
(4) "Medical emergency" means any condition that a reasonably prudent physician with knowledge of the case and treatment possibilities would determine that a condition exists that would so complicate the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy in order to avert her death or for which delay will create a serious risk of substantial and irreversible impairment of a major bodily function.
(5) "Minor" means any person under the age of eighteen years.
(6)"Parent" means one parent of the pregnant female, or guardian or curator if the pregnant female has one.
(7) "Unemancipated minor" means any minor who is neither married nor who has not been emancipated pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine of this code.
§16-2F-3. Required proof of age prior to performing an abortion.
(a) Except in the case of a medical emergency, a physician may not perform an abortion on a pregnant female unless:
(1) The physician or his or her designee has obtained proof of age which a reasonably prudent person would think demonstrates that the female is not an unemancipated minor or proof which a reasonable and prudent person would think demonstrates that the minor is emancipated; or
(2) A family court judge of the county in which the female resides or in which the abortion is to be performed has entered an order authorizing a physician to perform the abortion pursuant to a petition or motion filed by a female who is unable to produce satisfactory proof demonstrating that she is not a minor or that she is an emancipated minor and after a finding by the court that the female is not a minor or that she is an emancipated minor. This order is not subject to appeal. If the family court judge denies the authorization that a decision is subject to review by the circuit court in an in-camera hearing. All hearings are subject to the procedural requirements of section five of this article; or
(3) The physician has complied with section four of this article.
(b) If the physician or his or her designee obtains proof of the age or emancipation of the female as provided in subsection (a) (1) of this section, the physician or his or her designee shall execute and sign for inclusion in the female's medical record an affidavit stating that to the best information and belief, a reasonable and prudent person under similar circumstances would have relied upon the information presented as sufficient evidence of the identity of the person seeking the abortion and that she is not a minor or that she is an emancipated minor.
(c) To the extent applicable, the physician shall keep in the female patient's file a copy of all affidavits, proof of age and of any court order provided for in this section for seven years following the date of the abortion or until five years after the minor reaches the age of majority, whichever is longer.
§16-2F-4. Parental notification required for abortions on unemancipated minors; exceptions; right of petition to family court.

(a)(1) A physician shall not perform an abortion upon an unemancipated minor unless notice is given to the parent of the unemancipated pregnant minor prior to a physician performing an abortion. Notice shall be given at least forty-eight hours prior to the performance of the procedure and a copy of the notice shall be kept in the minor's medical records for at least seven years or until five years after she reaches the age of majority, whichever is longer. A parent may receive:
(A) Actual notice and may waive the forty-eight hour notice period: Provided, That this waiver shall not be construed to waive any period mandated by section two, article two-i, chapter sixteen of this code; or
(B) Constructive notice sent via the United States Post Office to the parent's last known address, restricted delivery, return receipt requested. The information concerning the address of the parent must be such which a reasonable and prudent person, under similar circumstances would have relied upon as sufficient evidence that the parent resides at that address. The forty-eight hour time period for written notice shall commence to run at twelve o-clock noon on the next day on which regular mail delivery takes place, subsequent to the date of the mailing.
(2) Prior to performing an abortion, a physician, or his or her designee, shall obtain from the parent to whom actual notice is given, proof of identification which a reasonable and prude person, under similar circumstances would have relied upon as sufficient evidence that the person is the parent of the minor female. A copy of this information or specific details concerning the proof provided shall be included in the minor's medical records.
(3) The physician performing the abortion or his or her designee, shall execute an affidavit certifying the information presented by the minor of her parent was sufficient evidence of their identity. This affidavit shall be included in the minor's medical records.
(b) Notice to the parent is not required if:
(1) A family court judge of the county in which the unemancipated minor resides or where the abortion is to be performed issues an order authorizing the unemancipated minor to consent to the abortion as provided by section five of this article; or
(2) The physician performing the abortion concludes in his or her clinical judgment, a medical emergency exists. The physician is required to certify to the Department of Health and Human Resources, on a form provided by the department, the medical justification supporting the physician's judgment that a medical emergency existed. A copy of this form shall be maintained in the minor's medical records.
(c) The physician shall keep a copy of the medical records of a minor for five years past the minor's age of majority, or for seven years following the date of the abortion, whichever is greater.
(d) 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 propose all forms, affidavits and certifications required by this section.
§16-2F-5. Petition to family court; review by circuit court.

(a) A family court judge of the county in which the minor resides or in which the abortion is to be performed may hear a petition or motion filed by an unemancipated minor who is to be performed may hear a petition or motion filed by an unemancipated minor who elects not to allow notification of her parent. The judge shall authorize a physician to perform the abortion without notice to the parent if the judge determines, by clear and convincing evidence, that the pregnant minor is mature and capable of giving informed consent to the abortion. If the judge determines that the pregnant minor is not mature, or if the pregnant minor does not claim to be mature, the judge shall determine, by clear and convincing evidence, whether the performance of an abortion upon her without notification of her parent would be in her best interest. The judge shall enter an order authorizing the physician to perform the abortion without notification if the judge concludes that the pregnant minor's best interests would be served. This authorization is not subject to appeal. If the family court judge denies the authorization that decision is subject to review by the circuit court in an in-camera hearing. All hearings are subject to the procedural requirements of section five of this article.
(b) A minor may file the petition or motion on her own behalf and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court appointed counsel, and shall, upon her request, provide her with such counsel. The attorney shall be paid for his or her services in accordance with the provisions of article twenty-one, chapter twenty-nine of this code.
(c) Proceedings in family court under this section are confidential and shall be given such precedence over other pending matters so that the family court judge may reach a decision promptly and without delay so as to serve the best interests of the pregnant minor. In no event shall the proceeding be later than the fifth business day after the day that the complaint is filed. A family court judge who conducts proceedings under this section shall make written factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge's own findings and conclusions. All records of proceedings in these proceedings shall be kept in the office of the clerk of the circuit court in a sealed file and shall be kept in a locked or sealed cabinet, vault or other container and shall not be opened to inspection or copy by anyone unless upon court order for good cause shown.
§16-2F-6. Reporting requirements for physicians.

(a) Any physician performing an abortion upon an unemancipated minor shall provide the Department of Health and Human Resources a written report of the procedure within thirty days after having performed the abortion. Nothing in the report shall personally identify any individual female. The Department of Health and Human Resources shall provide reporting forms for this purpose to all physicians and public health facilities required to be licensed pursuant to article five-b of this chapter. The following information, in addition to any other information which may be required by the Department of Health and Human Resources, regarding the minor receiving the abortion shall be included in such reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births;
(5) Previous abortions;
(6) Complications, if any, of the abortion being reported;
(7) Reason for waiver of notification of the minor's parent or guardian, if such notice was waived; and
(8) (7) The city and county in which the abortion was performed;
Any such report shall not contain the name, address or other information by which the minor receiving the abortion may be identified.
(8) The number of females whose parent was notified pursuant to section four of this article and the manner in which they were notified;
(9) The number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;
(10) The number of females upon whom the physician performed an abortion without providing the notice described in section four of this article, including the number who were emancipated minors;
(11) The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification; and
(c) The Department of Health and Human Resources may propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to develop reporting forms as described in this section. The rules shall ensure that copies of the reporting forms, described in this section, together with a reprint of this article, are provided:
(1) By the first day of December of every year, other than the calendar year in which forms are distributed in accordance with this section, to all physicians licensed to practice in this state; and
(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.
(d) 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 or his or her designee who provided the notice described in section four of this article and any physician who knowingly performed an abortion upon a pregnant minor or upon a female for whom a guardian or curator had been appointed pursuant to applicable federal law or as provided by sections three and four, article ten, chapter forty-four of this code because of a finding of incompetency of the pregnant minor during the previous calendar year shall submit to the Department of Health and Human Resources a copy of the forms described in this section with the requested data entered accurately and completely. The information included in the reports shall not personally identify any individual female.
(e) Reports that are not submitted within thirty days following the due date are subject to a late fee of five hundred dollars for the first month and one thousand 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 circuit court of the county in which the physician resides or practices to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.
(f) By the thirtieth day of June 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 article. The report shall also include statistics which shall be obtained from the Supreme Court of Appeals giving the total number of petitions or motions filed under subsection (a), section five of this article, including the number in which the court appointed a guardian ad litem, the number in which the court appointed counsel, the number in which the family court judge issued an order authorizing an abortion without notification, the number in which the family court judge denied such an order, the number of denials from which an appeal was filed, the number of appeals that resulted in the denials being affirmed, and the number of appeals that resulted in reversals of denials. Each report shall provide the statistics from late or corrected reports for all previous calendar years. The information included in the public reports shall not personally identify any individual female.
(g) If the Department of Health and Human Resources fails to issue the public report required by subsection (g) of this section, any group of ten or more citizens of this state may seek an injunction in the circuit court of Kanawha County against the Secretary of the Department of Health and Human Resources requiring that a complete report be issued within a period stated by court order.
(h) The Department of Health and Human Resources may propose rules for legislative approval pursuant to section five, article three, chapter twenty-nine-a of this code to alter the dates established by subdivision (1), subsection (b) or subsection (c) or (g) of this section or consolidate the 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 (g) of this section is issued at least once every year.
§16-2F-8. Penalties.

(a) A person who uses a false governmental record or makes a false representation or statement in order to obtain an abortion for a minor or who signs an affidavit or certification required by section three or four of this article that is false is guilty of false swearing as defined in section two, article five, chapter sixty-one of this code.
(b) Any person who uses a false governmental record or makes a false representation or statement in order to obtain an abortion for a minor or who signs an affidavit or certification required by section three or four of this article that is false is civilly liable to the person or persons entitled to receive parental notice for pain and suffering, and any subsequent costs of medical or psychiatric treatment a minor might require because of complications resulting from the abortion.
(c) Any person who knowingly or recklessly performs an abortion on a pregnant unemancipated minor in violation of this article commits a felony and upon conviction shall be imprisoned in a state correctional facility not less than three nor more than ten years.
(d) Any person who knowingly, recklessly or negligently performs an abortion on an unemancipated minor in violation of this article is civilly liable to the person or persons entitled to receive parental notice for pain and suffering and any subsequent costs of medical or psychiatric treatment a minor might require because of complications resulting from the abortion.
(e) It is not a defense to a claim brought pursuant to this section that the minor gave informed and voluntary consent.
(f) An unemancipated minor does not have capacity to consent to any action that violates this article.
§16-2F-9. Severability.
If any one or more provisions, section, subsection, sentence, clause, phrase or word of this article or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this article shall remain effective notwithstanding such constitutionality. The Legislature hereby declares that it would have passed this article, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.
NOTE: The purpose of this bill relates to parental involvement in the minor's decision to obtain an abortion. The bill requires abortion providers to obtain proof of age prior to the performance of an abortion on a pregnant woman. The bill provides for a judicial bypass. Abortion providers must provide actual or constructive notice to parents of minors, and maintain certifications of such notice as well as parent's proof of identification for a minimum time period in the medical file of the minor. The bill creates civil liability, criminal penalties, and mandates certain reporting requirements while containing a severability clause.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§16-2F-3, §16-2F-4, §16-2F-5, §16-2F-8 and §16-2F-9 have been completely rewritten; therefore, strike-throughs and underscoring have been omitted.