SB597 H JUD AM 3-10#1
The Committee on the Judiciary moves to amend the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
That §16-2I-10 of the Code of West Virginia, 1931, as amended, be repealed, that §16-2I-2, §16-2I-8 and §16-2I-9 be amended and reenacted, all to read as follows:
§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) The female is told the following, by telephone or in person, by the physician or the licensed health care professional to whom the responsibility has been delegated by the physician who is to perform the abortion at least twenty-four hours before the abortion:
(1) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility;
(2) The probable gestational age of the embryo or fetus at the time the abortion is to be performed; and
(3) 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 by the female to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician and whatever other relevant information is reasonably available to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician. It may not be provided by a tape recording, but must be provided during a consultation in which the physician or licensed health care professional to whom the responsibility has been delegated by the physician is able to ask questions of the female and the female is able to ask questions of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician.
If a physical examination, tests or the availability of other information to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician subsequently indicate, in the medical judgment of the physician or the licensed health care professional to whom the responsibility has been delegated by 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 before 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) The female is informed, by telephone or in person, by the physician who is to perform the abortion, or by an agent of the 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 state-sponsored website and the website address;
and
(4) That the female will be presented with a form which she will be required to execute prior to the abortion procedure that is available pursuant to section three of this article, and that the form to be presented will inform her of the opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image, if an ultrasound is performed .
The physician or an agent of the physician shall orally inform the female that the materials have been provided by the State of West Virginia and that they describe the embryo or 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 first class mail in an unmarked envelope.
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) The form required pursuant to subdivision (4), subsection (b) of this section shall include the following information: (1) It is a female's decision whether or not to undergo any ultrasound imaging procedure in consultation with her health care provider; (2) If an ultrasound is performed in conjunction with the performance of an abortion procedure, the female has the right to view or to decline to view the image; and (3) That the woman has been previously informed of her opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image. The woman shall certify her choice on this form prior to the abortion procedure being performed.
(c) The female shall certify in writing, prior to before 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) Prior to Before 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 subsections (b) and (c) of this section.
§16-2I-8. Administrative remedies.
Any physician or agent thereof who willfully violates the provisions of this article may be subject to sanctions as levied by the licensing board governing his or her profession.
(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 willfully 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 revoke the violator's license.
(c) No penalty or civil liability may be assessed for failure to comply with paragraph (3), subsection (b), section two of this article or that portion of subsection (c) of said section requiring a written certification that the female has been informed of her opportunity to review the information referred to in paragraph (3), of subsection (b) of said section unless the department of health and human resources has made the printed materials available at the time the physician or the licensed health care professional to whom the responsibility has been delegated by the physician is required to inform the female of her right to review them.
§16-2I-9. Civil remedies.
Any person upon whom an abortion has been attempted or performed without section two of this article having been complied with may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages. If the person upon whom an abortion has been attempted or performed without section two of this article having been complied with is a minor, the legal guardian of the minor may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages.
§16-2I-9. Severability.
If any one or more provision, 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 unconstitutionality. 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 that any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.