(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device intentionally to terminate the pregnancy of a female 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 embryo or fetus.
(b) "Attempt to perform 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 of an abortion in West Virginia in violation of this article.
(c) "Medical emergency" means any condition which, on the basis of a physician's good-faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(d) "Physician" means any medical or osteopathic doctor licensed to practice medicine in this state.
(e) "Probable gestational age of the embryo or fetus" means what, in the judgment of the physician, will with reasonable probability be the gestational age of the embryo or fetus at the time the abortion is planned to be performed.
(f) "Stable internet website" means a website that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the department of health and human resources.
(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 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;
(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.
The female shall certify in writing, 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.
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 subsections (b) and (c) of this section.
(1) Geographically indexed materials designed to inform the reader of public and private agencies and services available to assist a female through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers. At the option of the secretary of health and human resources, a twenty-four-hour-a-day telephone number may be established with the number being published in such a way as to maximize public awareness of its existence which may be called to obtain a list and description of agencies in the locality of the caller and of the services they offer; and
(2) Materials designed to inform the female of the probable anatomical and physiological characteristics of the embryo or fetus at two-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus's survival and pictures or drawings representing the development of an embryo or fetus at two-week gestational increments: Provided, That any such pictures or drawings must contain the dimensions of the embryo or fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the embryo or fetus at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with carrying a child to term.
(b) The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The website provided for in section four of this article shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on the website shall be a minimum of 200 x 300 pixels. All letters on the website shall be a minimum of eleven-point font. All information and pictures shall be accessible with an industry standard browser requiring no additional plug-ins.
(c) The materials required under this section shall be available at no cost from the department of health and human resources upon request and in appropriate numbers to any person, facility or hospital.
(1) The number of females to whom the information described in subsection (a), section two of this article was provided;
(2) The number of females to whom the physician or an agent of the physician provided the information described in subsection (b), section two of this article;
(3) The number of females who availed themselves of the opportunity to obtain a copy of the printed information described in section three of this article other than on the website;
(4) The number of abortions performed in cases involving medical emergency; and
(5) The number of abortions performed in cases not involving a medical emergency.
(b) The secretary of the department of health and human resources shall ensure that copies of the reporting forms described in subsection (a) of this section are provided:
(1) Within one hundred twenty days after the effective date of this article to all physicians licensed to practice in this state;
(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; and
(3) By the first day of December of each year, other than the calendar year in which forms are distributed in accordance with subdivision (1) of this subsection, to all physicians licensed to practice in this state.
(c) By the twenty-eighth day of February of each year following a calendar year in any part of which this act was in effect, each physician who provided, or whose agent provided, information to one or more females in accordance with section two of this article during the previous calendar year shall submit to the secretary of the department of health and human resources a copy of the form described in subsection (a) of this section with the requested data entered accurately and completely.
(d) Reports that are not submitted by the end of a grace period of thirty days following the due date are subject to a late fee of five hundred 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 secretary of the department of health and human resources, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.
(e) By the first day of August of each year, the secretary of 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 section for each of the items listed in subsection (a) of this section. Each report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The secretary of the department of health and human resources shall prevent any of the information from being included in the public reports that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section. Any information that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section is exempt from disclosure under the freedom of information act, article one, chapter twenty-nine-b of this code.
(f) The secretary of 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 which alter the dates established by subdivision (3), subsection (b) of this section or subsection (c) or (e) of this section or consolidate the forms or reports described in this section with other 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 (e) of this section is issued at least once every year.
Acts, 2010 Reg. Sess., Ch. 94.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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