HB2002 H H&HR AM #1
CR 3338
The Committee on Health and Human Resources moved to amend the bill on page 1, by striking everything after the enacting clause and inserting in lieu thereof the following:
“That §16-2F-1, §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6 and §16-2F-8 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-1. Legislative findings and intent.
(a) The Legislature finds that immature minors often lack
the ability to make fully informed choices that take into account both
immediate and long-range consequences of their actions; that the medical,
emotional and psychological consequences of abortion are serious and of
indeterminate duration, particularly when the patient is immature; that in its
current abortion policy as expressed in Bellotti v. Baird, 443 U. S. 622
(1979), and H. L. v. Matheson, 450 U. S. 398 (1981), and Hodgson v.
Minnesota, 497 U.S. 417, (1990), the United States Supreme Court clearly
relies on physician's commitment to consider all factors, physical and
otherwise, before performing abortions on minors held that notification
of a parent with a judicial waiver procedure is Constitutional; that
parents ordinarily possess information essential to a physician's exercise of
his or her best medical judgment concerning their child; and that
parents who are aware that their minor daughter has had an abortion may better
ensure that the minor receives adequate medical attention after her abortion.
(b) The Legislature further finds that parental consultation regarding abortion is usually desirable and in the best interests of the minor.
(c) The Legislature further finds in accordance
with the U. S. Supreme Court's decision in Bellotti v. Baird, 443 U. S. 622
(1979), and H. L. v. Matheson, 450 U. S. 398 (1981), that there exists
important and compelling state interests:
(i) (1) in protecting minors against their
own immaturity,
(ii) (2) in fostering the family structure
and preserving it as a viable social unit, and
(iii) (3) in protecting the rights of
parents to rear their own children in their own household.
(d) It is, therefore, the intent of the Legislature to further these important and compelling state interests by enacting this parental notice provision.
§16-2F-2. Definitions.
For purposes of this article, unless the context in
which used clearly requires otherwise:
(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 been emancipated as pursuant to applicable
federal law or as provided by section twenty-seven, article seven, chapter
forty-nine of this code.
(3) "Actual notice" means the giving of
notice directly, in person or by telephone.
(4) "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.
As used in this article:
(1) "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. This article does not 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 the 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.
(3) "Actual notice" means the giving of notice directly, in person or by telephone.
(4) "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) “Medical emergency” means the same as that term is defined in section two, article two-m of this chapter.
(6) “Secretary” means the Secretary of the West Virginia Department of Health and Human Resources.
(7) “Unemancipated minor” means any person less that eighteen years of age who is not, or has not been, married or has not graduated from high school who is under the care custody and control of the person’s parent or parents, guardian or court of competent jurisdiction pursuant to applicable federal law or as provided in section twenty-seven, article seven, chapter forty-nine of this code.
§16-2F-3. Parental notification required for abortions performed on unemancipated minors; waiver; notice to minor of right of petition to circuit court; minor to be referred for counseling.
(a) No physician may perform an abortion upon an unemancipated minor unless such physician has given or caused to be given at least twenty-four hours actual notice to one of the parents or to the legal guardian of the pregnant minor of his intention to perform the abortion, or, if the parent or guardian cannot be found and notified after a reasonable effort to do so, without first having given at least forty- eight hours constructive notice computed from the time of mailing to the parent or to the legal guardian of the minor: Provided, That prior to giving the notification required by this section, the physician shall advise the unemancipated minor of the right of petition to the circuit court for waiver of notification: Provided, however, That any such notification may be waived by a duly acknowledged writing signed by a parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the legal guardian of such pregnant minor, the physician shall refer such pregnant minor to a counselor or caseworker of any church or school or of the department of human services or of any other comparable agency for the purpose of arranging or accompanying such pregnant minor in consultation with her parents. Such counselor shall thereafter be authorized to monitor the circumstances and the continued relationship of and between such minor and her parents.
(c) Parental notification
required by subsection (a) of this section may be waived by a physician, other
than the physician who is to perform the abortion, if such other physician
finds that the minor is mature enough to make the abortion decision
independently or that notification would not be in the minor's best interest. Provided,
That such The other physician shall not be associated professionally or
financially with the physician proposing to perform the abortion and shall
immediately petition the court as provided in section four.
§16-2F-4. Process to obtain waiver of notification.
(a) A minor An unemancipated
minor who objects to such the notice being given to her
parent or legal guardian or a physician on behalf of the unemancipated minor
may petition for a waiver of such the notice to the circuit
court of the county in which the minor unemancipated minor resides
or in which the abortion is to be performed, or to the judge of either of such
courts. Such minor may so petition and proceed in her own right or, at her
option, by a next friend.
(b) Such The petition
need not be made in any specific form and shall be sufficient if it fairly sets
forth the facts and circumstances of the matter, but shall contain the
following information:
(i) The age of the petitioner and her educational level;
(ii) The county and state in which she resides;
(iii) A brief statement of petitioner's reason or reasons for the desired waiver of notification of the parent or guardian of such minor petitioner.
No such petition shall be dismissed nor shall any hearing thereon be refused because of any defect in the form of the petition.
(c) Upon the effective
date of this article or as soon thereafter as may be, The Attorney General
shall prepare suggested form petitions and accompanying instructions and shall
make the same available to the several clerks of the circuit courts. Such
The clerks shall see that a sufficient number of such suggested make
the form petitions and instructions are available in the clerk's
office. for the use of any person desiring to use the same for the purposes
of this section.
(d) All The proceedings
held pursuant to this article shall be confidential and the court shall conduct
all such the proceedings in camera. The court shall inform the minor
petitioner of her right to be represented by counsel. and that If she
the petitioner is without the requisite funds to retain the services of
an attorney, that the court will appoint an attorney to represent her
the petitioner’s interest in the matter. If the minor petitioner
desires the services of an attorney, an attorney shall be appointed to represent
such the minor petitioner, if she the petitioner
advises the court under oath or affidavit that she the petitioner
is financially unable to retain counsel. Any An attorney
appointed to represent such the minor petitioner shall be
appointed and paid for his or her services pursuant to the provisions of
article twenty-one, chapter twenty-nine of this code. Provided,
That The pay to any such attorney pursuant to such appointment shall
not exceed the sum of $100.
(e) The court shall conduct
a hearing upon the petition without delay, but in no event shall the delay
may not exceed the next succeeding judicial day. and The court
shall render its decision immediately upon its submission and, in any event,
an order reflecting the findings of fact and conclusions of law reached by the
court and its judgement shall be endorsed by the judge thereof its
written order not later than twenty-four hours following such submission
and shall be forthwith entered of in the record by the
clerk of the court. All testimony, documents, and other evidence, presented
to the court, as well as the petition, and any orders entered
thereon and all records of whatsoever nature and kind relating to the
matter shall be sealed by the clerk and shall not be opened to any person
except upon order of the court and, then, only upon a showing of good
cause. being shown therefor. A separate order book for the purposes of
this article shall be maintained by such the clerk and shall likewise
be sealed and not open to inspection by any person save upon order of the court
for good cause shown.
(f) Notice as required by section three of this article shall be ordered waived by the court if the court finds either:
(1) That the minor
petitioner is mature and well informed sufficiently to make the decision to
proceed with the abortion independently and without the notification or
involvement of her parent or legal guardian; or
(2) That notification to
the person or persons to whom such the notification would
otherwise be required would not be in the best interest of the minor
petitioner.
(g) If or when the
circuit court, or the judge thereof, shall refuse to order the waiver of the
notification required by section three of this article, a copy of the petition
and all orders entered in the matter and all other documents and papers
submitted to the circuit court, may be presented to the Supreme Court of
Appeals, or to any justice thereof if such court then be in vacation, and such
court or justice if deemed proper, may thereupon order the waiver of
notification otherwise required by section three of this article. The Supreme
Court of Appeals or justice thereof shall hear and decide the matter without
delay and shall enter such orders as such court or justice may deem
appropriate.
(h) If either the
circuit court or the Supreme Court of Appeals, or any judge or justice thereof
if either of such courts be then in vacation, shall order a waiver of the
notification required by section three of this article, any physician to whom a
certified copy of said order shall be presented may proceed to perform the
abortion to the same extent as if such physician were in compliance with the
provisions of said section three and, notwithstanding the fact that no
notification is given to either the parent or legal guardian of any such
unemancipated minor, any such physician shall not be subject to the penalty
provisions which may be prescribed by this article for such failure of notification.
(g) A confidential appeal shall be available to an petitioner to whom a court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification may not be appealed. Access to the trial court and the Supreme Court of Appeals shall be given to an unemancipated minor.
(i) (h) No Filing fees may be are
not required of any unemancipated minor who avails herself of any of
the procedures provided by this section.
§16-2F-5. Emergency exception from notification requirements.
The notification
requirements of section three of this article do not apply where the
attending physician certifies that there is an emergency a
need for an abortion to be performed if the continuation of the pregnancy
constitutes an immediate threat and grave risk to the life or health of the
pregnant minor and the attending physician so certifies in writing setting
forth the nature of such threat or risk and the consequences which may be
attendant to the continuation of the pregnancy due to a medical
emergency. Such writing A description of the medical emergency
shall be maintained with the other unemancipated minor’s medical
records. relating to such minor which are maintained. by the physician and
the facility at which such abortion is performed.
§16-2F-6. Reporting requirements for physicians.
(a) Any A physician performing an abortion
upon an unemancipated minor shall provide the department of health secretary
a written report of the procedure within thirty days after having performed the
abortion. The department of health 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 secretary, regarding the minor an unemancipated
minor receiving the abortion shall be included in such the 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) The city and county in which the abortion was performed.
(b) Any such The report shall not contain
the name, address or other information by which the minor unemancipated
minor receiving the abortion may be identified.
§16-2F-8. Penalties.
Any person who knowingly
performs an abortion upon an unemancipated minor in violation of this article
or who knowingly fails to conform to any requirement of this article shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less
than $500 nor more than $1,000 or imprisoned in the county jail not more than
thirty days, or both fined and imprisoned.
(a) Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.
(b) A person, not subject to subsection (a) of this section, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of section thirteen, article three, chapter thirty of this code, and upon conviction, subject to the penalties contained in that section.
(c) In addition to the penalties set forth in subsections (a) and (b) of this section, a patient may seek any remedy otherwise available to such patient by applicable law.
(d) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.