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WVC 16-


WVC 16 - 2 F- 1 §16-2F-1. Legislative findings and intent.
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), the United States supreme court clearly relies on physician's commitment to consider all factors, physical and otherwise, before performing abortions on minors; that parents ordinarily possess information essential to a physician's exercise of his 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. The Legislature further finds that parental consultation regarding abortion is usually desirable and in the best interests of the minor.

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) in protecting minors against their own immaturity, (ii) in fostering the family structure and preserving it as a viable social unit, and (iii) in protecting the rights of parents to rear their own children in their own household.

It is, therefore, the intent of the Legislature to further these interests by enacting this parental notice provision.

WVC 16-2F-2 §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.

WVC 16 - 2 F- 3 §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 other physician shall not be associated professionally or financially with the physician proposing to perform the abortion.

WVC 16 - 2 F- 4 §16-2F-4. Waiver of notification; petition to circuit court; contents of petition; duties of attorney general and circuit clerk; confidentiality of proceedings; appointment of counsel and limitation of compensation; findings required to be made by court; petition to supreme court; waiver of certain fees.
(a) A minor who objects to such notice being given to her parent or legal guardian may petition for a waiver of such notice to the circuit court of the county in which the 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 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 clerks shall see that a sufficient number of such suggested 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 proceedings held pursuant to this article shall be confidential and the court shall conduct all such proceedings in camera. The court shall inform the minor petitioner of her right to be represented by counsel and that if she is without the requisite funds to retain the services of an attorney, that the court will appoint an attorney to represent her interest in the matter. If the minor petitioner desires the services of an attorney, an attorney shall be appointed to represent such minor petitioner, if she advises the court under oath or affidavit that she is financially unable to retain counsel. Any attorney appointed to represent such minor petitioner shall be appointed and paid for 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 one hundred dollars.

(e) The court shall conduct a hearing upon the petition without delay, but in no event shall the delay 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 not later than twenty-four hours following such submission and shall be forthwith entered of 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 good cause being shown therefor. A separate order book for the purposes of this article shall be maintained by such 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 abortionindependently and without the notification or involvement of her parent or legal guardian, or

(2) That notification to the person or persons to whom such 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.

(i) No filing fees may be required of any minor who avails herself of any of the procedures provided by this section.

WVC 16 - 2 F- 5 §16-2F-5. Emergency exception from notification requirements.
The notification requirements of section three of this article do not apply where there is an emergency 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. Such writing shall be maintained with the other medical records relating to such minor which are maintained by the physician and the facility at which such abortion is performed.

WVC 16 - 2 F- 6 §16-2F-6. Reporting requirements for physicians.
Any physician performing an abortion upon an unemancipated minor shall provide the department of health 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, 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) 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.

WVC 16 - 2 F- 7 §16-2F-7. Article not to be construed to require abortion.
Nothing in this article, nor in any order issued pursuant thereto, shall require that a physician perform an abortion or that any person be required to assist in the performance of an abortion if such physician or person, for any reason, medical or otherwise, does not wish to perform or assist in such abortion.

WVC 16 - 2 F- 8 §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 five hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than thirty days, or both fined and imprisoned.

WVC 16 - 2 F- 9 §16-2F-9. Severability.
The provisions of subsection (cc), section ten, article two, chapter two of this code shall apply to the provisions of this article to the same extent as if said subsection were set forth in extenso herein.

Note: WV Code updated with legislation passed through the 2016 Regular Session
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