Introduced Version
Senate Bill 487 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 487
(By Senators Prezioso, Cann, Beach, M. Hall, D. Hall, Boley and
Carmichael)
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[Introduced March 8, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-2M-1, §16-2M-2,
§16-2M-3, §16-2M-4, §16-2M-5, §16-2M-6, §16-2M-7, §16-2M-8,
§16-2M-9, §16-2M-10 and §16-2M-11, all relating to creating
the West Virginia Pain-Capable Unborn Child Protection Act;
asserting a compelling state interest in protecting the lives
of unborn children from the stage at which substantial medical
evidence indicates that they are capable of feeling pain;
short title; legislative findings; definitions; determination
of post-fertilization age; prohibiting abortion of unborn
child of twenty or more weeks post-fertilization age;
requiring reports from physicians who perform or attempt to
perform abortions; criminal penalties; civil remedies;
protection of privacy in court proceedings; creating a litigation defense fund; and stating how article is to be
construed.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-2M-1, §16-2M-2,
§16-2M-3, §16-2M-4, §16-2M-5, §16-2m-6, §16-2M-7, §16-2M-8,
§16-2M-9, §16-2M-10 and §16-2M-11, all to read as follows:
ARTICLE 2M. PAIN-CAPABLE UNBORN CHILD PROTECTION ACT.
§16-2M-1. Short title.
This article may be cited as the "West Virginia Pain-Capable
Unborn Child Protection Act".
§16-2M-2. Legislative findings.
The Legislature makes the following findings:
(a) Pain receptors (nociceptors) are present throughout the
unborn child's entire body and nerves link these receptors to the
brain's thalamus and subcortical plate by no later than twenty
weeks.
(b) By eight weeks after fertilization, the unborn child
reacts to touch. After twenty weeks, the unborn child reacts to
stimuli that would be recognized as painful if applied to an adult
human, for example, by recoiling.
(c) In the unborn child, application of such painful stimuli
is associated with significant increases in stress hormones known as the stress response.
(d) Subjection to such painful stimuli is associated with
long-term harmful neurodevelopmental effects, such as altered pain
sensitivity and, possibly, emotional, behavioral and learning
disabilities later in life.
(e) For the purposes of surgery on unborn children, fetal
anesthesia is routinely administered and is associated with a
decrease in stress hormones compared to their level when painful
stimuli are applied without such anesthesia.
(f) The position, asserted by some medical experts, that the
unborn child is incapable of experiencing pain until a point later
in pregnancy than twenty weeks after fertilization predominately
rests on the assumption that the ability to experience pain depends
on the cerebral cortex and requires nerve connections between the
thalamus and the cortex. However, recent medical research and
analysis, especially since 2007, provide strong evidence for the
conclusion that a functioning cortex is not necessary to experience
pain.
(g) Substantial evidence indicates that children born missing
the bulk of the cerebral cortex, those with hydranencephaly,
nevertheless experience pain.
(h) In adults, stimulation or ablation of the cerebral cortex
does not alter pain perception, while stimulation or ablation of
the thalamus does.
(i) Substantial evidence indicates that structures used for
pain processing in early development differ from those of adults,
using different neural elements available at specific times during
development, such as the subcortical plate, to fulfill the role of
pain processing.
(j) The position, asserted by some medical experts, that the
unborn child remains in a coma-like sleep state that precludes the
unborn child experiencing pain is inconsistent with the documented
reaction of unborn children to painful stimuli and with the
experience of fetal surgeons who have found it necessary to sedate
the unborn child with anesthesia to prevent the unborn child from
thrashing about in reaction to invasive surgery.
(k) Consequently, there is substantial medical evidence that
an unborn child is capable of experiencing pain by twenty weeks
after fertilization.
(l) It is the purpose of the state to assert a compelling
state interest in protecting the lives of unborn children from the
stage at which substantial medical evidence indicates that they are
capable of feeling pain.
(m) West Virginia's compelling state interest in protecting
the lives of unborn children from the stage at which substantial
medical evidence indicates that they are capable of feeling pain is
intended to be separate from and independent of West Virginia's
compelling state interest in protecting the lives of unborn children from the stage of viability, and neither state interest is
intended to replace the other.
(n) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in
which in the context of determining the severability of a state
statute regulating abortion the United States Supreme Court noted
that an explicit statement of legislative intent specifically made
applicable to a particular statute is of greater weight than a
general savings or severability clause, it is the intent of the
state that if any one or more provisions, sections, subsections,
sentences, clauses, phrases or words 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. Moreover, the state 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 provisions, sections, subsections,
sentences, clauses, phrases or words, or any of their applications,
were to be declared unconstitutional.
§16-2M-3. Definitions.
For purposes of this article:
(a) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device to
terminate the pregnancy of a woman 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 unborn child who died as the result of natural causes
in utero, accidental trauma or a criminal assault on the pregnant
woman or her unborn child, and which causes the premature
termination of the pregnancy.
(b) "Attempt to perform or induce an abortion" means an act,
or an omission of a statutorily required act that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance or induction of an abortion in this state in violation
of this article.
(c) "Department" means the Department of Health and Human
Resources.
(d) "Fertilization" means the fusion of a human spermatozoon
with a human ovum.
(e) "Medical emergency" means a condition that, in reasonable
medical judgment, so complicates the medical condition of the
pregnant woman that it necessitates the immediate abortion of her
pregnancy without first determining postfertilization age to avert
her death or for which the delay necessary to determine post-
fertilization age will create serious risk of substantial and
irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions. No condition may be deemed a medical emergency if based on a claim or diagnosis that
the woman will engage in conduct which she intends to result in her
death or in substantial and irreversible physical impairment of a
major bodily function.
(f)"Physician" means any person licensed to practice medicine
and surgery or osteopathic medicine and surgery in this state.
(g)"Post-fertilization age" means the age of the unborn child
as calculated from the fusion of a human spermatozoon with a human
ovum.
(h)"Probable post-fertilization age of the unborn child" means
what, in reasonable medical judgment, will with reasonable
probability be the post-fertilization age of the unborn child at
the time the abortion is planned to be performed or induced.
(i)"Reasonable medical judgment" means a medical judgment that
would be made by a reasonably prudent physician, knowledgeable
about the case and the treatment possibilities with respect to the
medical conditions involved.
(j)"Unborn child" or "fetus" each mean an individual organism
of the species homo sapiens from fertilization until live birth.
(k)"Woman" means a female human being whether or not she has
reached the age of majority.
§16-2M-4. Determination of post-fertilization age.
(a) Except in the case of a medical emergency, an abortion may
not be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first
made a determination of the probable post-fertilization age of the
unborn child or relied upon such a determination made by another
physician. In making such a determination, the physician shall make
such inquiries of the woman and perform or cause to be performed
such medical examinations and tests as a reasonably prudent
physician, knowledgeable about the case and the medical conditions
involved, would consider necessary to perform in making an accurate
diagnosis with respect to post-fertilization age.
(b) Failure by any physician to conform to any requirement of
this section constitutes "unprofessional conduct" pursuant to
section fourteen(7), article, chapter thirty of this code.
§16-2M-5. Abortion of unborn child of twenty or more weeks post-
fertilization age prohibited.
(a) No person may perform or induce or attempt to perform or
induce an abortion upon a woman when it has been determined, by the
physician performing or inducing or attempting to perform or induce
the abortion or by another physician upon whose determination that
physician relies, that the probable post-fertilization age of the
woman's unborn child is twenty or more weeks, unless, in reasonable
medical judgment, she has a condition which so complicates her
medical condition as to necessitate the abortion of her pregnancy
to avert her death or to avert serious risk of substantial and
irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such greater
risk may be considered to exist if it is based on a claim or
diagnosis that the woman will engage in conduct which she intends
to result in her death or in substantial and irreversible physical
impairment of a major bodily function.
(b) When an abortion upon a woman whose unborn child has been
determined to have a probable post-fertilization age of twenty or
more weeks is not prohibited by subsection (a) of this section, the
physician shall terminate the pregnancy in the manner which, in
reasonable medical judgment, provides the best opportunity for the
unborn child to survive, unless, in reasonable medical judgment,
termination of the pregnancy in that manner would pose a greater
risk either of the death of the pregnant woman or of the
substantial and irreversible physical impairment of a major bodily
function, not including psychological or emotional conditions, of
the woman than would other available methods. No such greater risk
may be considered to exist if it is based on a claim or diagnosis
that the woman will engage in conduct which she intends to result
in her death or in substantial and irreversible physical impairment
of a major bodily function.
§16-2m-6. Reporting.
(a) Any physician who performs or induces or attempts to
perform or induce an abortion shall report to the department, on a
schedule and in accordance with forms and regulations adopted and promulgated by the department, that include:
(1) Post-fertilization age:
(i) If a determination of probable postfertilization age was
made, whether ultrasound was employed in making the determination,
and the week of probable post-fertilization age determined.
(ii) If a determination of probable post-fertilization age was
not made, the basis of the determination that a medical emergency
existed.
(2) Method of abortion: which of the following was employed:
(i) Medication abortion (such as, but not limited to,
mifepristone/misoprostol or methotRexate/misoprostol);
(ii) Manual vacuum aspiration;
(iii) Electrical vacuum aspiration;
(iv) Dilation and evacuation;
(v) Combined induction abortion and dilation and evacuation
(vi) Induction abortion with prostaglandins;
(vii) Induction abortion with intra-amniotic instillation
(such as, but not limited to, saline or urea);
(viii) Induction abortion, other;
(ix) Intact dilation and extraction (partial-birth); or
(x) Method not listed (specify).
(3) Whether an intra-fetal injection was used in an attempt to
induce fetal demise (such as, but not limited to, intrafetal
potassium chloride or digoxin).
(4) Age and race of the patient.
(5) If the probable post-fertilization age was determined to
be twenty or more weeks, the basis of the determination that the
pregnant woman had a condition which so complicated her medical
condition as to necessitate the abortion of her pregnancy to avert
her death or to avert serious risk of substantial and irreversible
physical impairment of a major bodily function, not including
psychological or emotional conditions.
(6) If the probable post-fertilization age was determined to
be twenty or more weeks, whether or not the method of abortion used
was one that, in reasonable medical judgment, provided the best
opportunity for the unborn child to survive and, if such a method
was not used, the basis of the determination that termination of
the pregnancy in that manner would pose a greater risk either of
the death of the pregnant woman or of the substantial and
irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions, of the woman than
would other available methods.
(b) Reports required by subsection (a) of this section may not
contain the name or the address of the patient whose pregnancy was
terminated, nor may the report contain any other information
identifying the patient, except that each report shall contain a
unique medical record identifying number, to enable matching the
report to the patient's medical records. These reports shall be maintained in strict confidence by the department, may not be
available for public inspection, and may not be made available
except:
(1) To the Attorney General or a prosecuting attorney with
appropriate jurisdiction pursuant to a criminal investigation;
(2) To the Attorney General or a prosecuting attorney pursuant
to a civil investigation of the grounds for an action under
subsection (b) of section eight of this article; or
(3) Pursuant to court order in an action under section eight
of this article.
(c) By June 30 of each year the department 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 (1) of this section. Each such report shall also
provide the statistics for all previous calendar years during which
this section was in effect, adjusted to reflect any additional
information from late or corrected reports. The department shall
take care to ensure that none of the information included in the
public reports could reasonably lead to the identification of any
pregnant woman upon whom an abortion was performed, induced or
attempted.
(d) Any physician who fails to submit a report by the end of
thirty days following the due date is subject to a late fee of $1,000 for each additional thirty-day period or portion of a
thirty-day period the report is overdue. Any physician required to
report in accordance with this article who has not submitted a
report, or has submitted only an incomplete report, more than six
months following the due date, may, in an action brought by the
department, be directed by a court of competent jurisdiction to
submit a complete report within a period stated by court order or
be subject to civil contempt. Intentional or reckless failure by
any physician to conform to any requirement of this section, other
than late filing of a report, constitutes "unprofessional conduct"
pursuant to section fourteen, article seven, chapter thirty of this
code. Intentional or reckless failure by any physician to submit
a complete report in accordance with a court order constitutes
"unprofessional conduct" pursuant to section fourteen, article
seven, chapter thirty of this code. Intentional or reckless
falsification of any report required under this section is a
misdemeanor as provided in article three, chapter thirty of this
code.
(e) Within ninety days of the effective date of this article,
the Department of Health and Human Services shall adopt and
promulgate forms and rules to assist in compliance with this
section. Subsection (a) of this section shall take effect so as to
require reports regarding all abortions performed or induced on and
after the first day of the first calendar month following the effective date of the rules.
§16-2M-7. Criminal penalties.
Any person who intentionally or recklessly performs or induces
or attempts to perform or induce an abortion in violation of this
article is guilty of a felony and, upon conviction thereof, shall
be fined not more than $1,000 or imprisoned in a state correctional
facility not less than one year, or both fined and imprisoned. No
penalty may be assessed against the woman upon whom the abortion is
performed or induced or attempted to be performed or induced.
§16-2M-8. Civil remedies.
(a) Any woman upon whom an abortion has been performed or
induced in violation of this article, or the father of the unborn
child who was the subject of such an abortion, may maintain an
action against the person who performed or induced the abortion in
intentional or reckless violation of this article for actual and
punitive damages. Any woman upon whom an abortion has been
attempted in violation of this article may maintain an action
against the person who attempted to perform or induce the abortion
in an intentional or reckless violation of this article for actual
and punitive damages.
(b) A cause of action for injunctive relief against any person
who has intentionally or recklessly violated this article may be
maintained by the woman upon whom an abortion was performed or
induced or attempted to be performed or induced in violation of this article: (1) By any person who is the spouse, parent, sibling or
guardian of, or a current or former licensed health care provider
of, the woman upon whom an abortion has been performed or induced
or attempted to be performed or induced in violation of this
article; or (2) by a county prosecuting attorney with appropriate
jurisdiction; or (3) by the Attorney General. The injunction shall
prevent the abortion provider from performing or inducing or
attempting to perform or induce further abortions in violation of
this article in this state.
(c) If judgment is rendered in favor of the plaintiff in an
action described in this section, the court shall also render
judgment for a reasonable attorney's fee in favor of the plaintiff
against the defendant.
(d) If judgment is rendered in favor of the defendant and the
court finds that the plaintiff's suit was frivolous and brought in
bad faith, the court shall also render judgment for a reasonable
attorney's fee in favor of the defendant against the plaintiff.
(e) No damages or attorney's fee may be assessed against the
woman upon whom an abortion was performed or induced or attempted
to be performed or induced except in accordance with subsection (d)
of this section.
§16-2M-9. 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 woman upon whom an abortion has been performed or induced or
attempted to be performed or induced shall be preserved from public
disclosure if she does not give her consent to the disclosure. The
court, upon motion or sua sponte, shall make 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 woman
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 woman upon whom
an abortion has been performed or induced or attempted to be
performed or induced, anyone, other than a public official, who
brings an action under subsection (a) or (b) of section eight of
this article 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 or from attorneys for the defendant.
§16-2M-10. Litigation Defense Fund.
(a) There is created a special revenue fund known as the West
Virginia Pain-Capable Unborn Child Protection Act Litigation Fund
for the purpose of providing funds to pay for any costs and expenses incurred by the State Attorney General in relation to actions
surrounding defense of this law.
(b) The fund shall be maintained by the Department of Health
and Human Resources.
(c) The fund shall consist of: (1) Appropriations made to the
account by the Legislature; and (2) any donations, gifts or grants
made to the account.
(d) The fund shall retain the interest income derived from the
moneys credited to the fund.
§16-2M-11. How article construed.
This article may not be construed to repeal, by implication or
otherwise or any otherwise applicable provision of law regulating
or restricting abortion. An abortion that complies with this
article but violates the provisions of any otherwise applicable
provision of law is unlawful as provided in that provision. An
abortion that complies with the provisions of any otherwise
applicable provision of law regulating or restricting abortion but
violates this article is unlawful as provided in this article. If
some or all of the provisions of this article are ever temporarily
or permanently restrained or enjoined by judicial order, all other
provisions of law regulating or restricting abortion shall be
enforced as though the restrained or enjoined provisions had not
been adopted: Provided, That whenever the temporary or permanent
restraining order of injunction is stayed or dissolved, or otherwise ceases to have effect, those provisions have full force and effect.
NOTE: The purpose of this bill is to create the "West Virginia
Pain-Capable Unborn Child Protection Act" that asserts a compelling
state interest in protecting the lives of unborn children from the
stage at which substantial medical evidence indicates that they are
capable of feeling pain. The bill prohibits abortion of unborn
child of twenty or more weeks post-fertilization age.
This article is new; therefore, strike-throughs and
underscoring have been omitted.