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Introduced Version Senate Bill 480 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2020 regular session

Introduced

Senate Bill 480

By Senator Maynard

[Introduced January 15, 2020; referred
to the Committee on Health and Human Resources; and then to the Committee on the Judiciary
]

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2P-1, §16-2P-2, §16-2P-3, §16-2P-4, §16-2P-5, §16-2P-6, §16-2P-7, and §16-2P-8, all relating to enacting the West Virginia Human Life Protection Act; making abortion and attempted abortion felony offenses except in cases where abortion is necessary in order to prevent a serious health risk to the unborn child’s mother; providing that a woman who receives an abortion will not be held criminally culpable or civilly liable for receiving the abortion; making legislative findings; and defining terms.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2P. The West Virginia Human Life Protection Act.


§16-2P-1. Short title.

This article shall be known as the West Virginia Human Life Protection Act.

§16-2P-2. Legislative findings.


(a) This state’s statute criminalizing abortion, §61-2-8 of this code, has never been repealed. It has remained unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973) and its progeny, which struck down as unconstitutional a Texas statute criminalizing abortion and which effectively repealed by implication and made unenforceable all other state statutes criminalizing abortion.

(b) In present state law, §61-2-30 of this code, recognizes an embryo or fetus as a distinct unborn victim of certain crimes of violence against the person.

(c) In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful.

(d) Abortion advocates speak to women’s rights, but they ignore the unborn child, while medical science has increasingly recognized the humanity of the unborn child.

(e) Recent medical advances prove a baby’s heart starts to beat at around six weeks. At about eight weeks, the heartbeat can be heard through an ultrasound examination. A fetal Doppler can detect a fetal heartbeat as early as 10 weeks.

(f) Ultrasound imaging shows the developing child in utero.

(g) As early as six weeks after fertilization, fetal photography shows the clear development of a human being.

(h) It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin’s regime in Soviet gulags; 2,500,000 people were murdered during the Chinese “Great Leap Forward” in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged to have been crimes against humanity. By comparison, more than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin’s gulags, Cambodian killing fields, and the Rwandan genocide combined.


§16-2P-3. Definitions.

As used in this article:

“Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child. The term does not include these activities if done with the intent to save the life or preserve the health of an unborn child, remove a dead unborn child, to deliver the unborn child prematurely to avoid a serious health risk to the unborn child’s mother, or to preserve the health of her unborn child. The term does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy, nor does it include the procedure or act to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.

“Ectopic pregnancy” means any pregnancy resulting from either a fertilized egg that has implanted or attached outside the uterus or a fertilized egg implanted inside the cornu of the uterus.

“Lethal anomaly” means a condition from which an unborn child would die after birth or shortly thereafter or be stillborn.

“Medical emergency” means a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman that her pregnancy must be terminated to avoid a serious health risk.

“Physician” means a person licensed to practice medicine and surgery or osteopathic medicine and surgery in West Virginia.

“Serious health risk to the unborn child’s mother” means in reasonable medical judgment, the child’s mother has a condition that so complicates her medical condition that it necessitates the termination of her pregnancy to avert her death or to avert serious risk of substantial physical impairment of a major bodily function. This term does not include a condition based on a claim that the woman is suffering from an emotional condition or a mental illness which will cause her to engage in conduct that intends to result in her death or the death of her unborn child. However, the condition may exist if a second physician who is licensed in West Virginia as a psychiatrist, with a minimum of three years of clinical experience, examines the woman and documents that the woman has a diagnosed serious mental illness and because of it, there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child. If the mental health diagnosis and likelihood of conduct is confirmed as provided in this article, and it is determined that a termination of her pregnancy is medically necessary to avoid the conduct, the termination may be performed and shall be only performed by a physician licensed in West Virginia in a hospital.

“Unborn child, child or person” means a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.

“Woman” means a female human being, whether or not she has reached the age of majority.

§16-2P-4.  Abortion prohibited; exception.


(a) It is unlawful for any person to intentionally perform or attempt to perform an abortion except as provided for by subsection (b) of this section.

(b) An abortion is permitted if an attending physician licensed in West Virginia determines that an abortion is necessary in order to prevent a serious health risk to the unborn child’s mother. Except in the case of a medical emergency, the physician’s determination shall be confirmed in writing by a second physician licensed in West Virginia. The confirmation shall occur within 180 days after the abortion is completed and shall be prima facie evidence for a permitted abortion.


§16-2P-5.  Pregnant women exempt from penalties.

No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child’s mother shall be criminally or civilly liable for those actions.

§16-2P-6.  Penalties.


(a) A person performing an abortion in violation of this article is guilty of a felony and, upon conviction, shall be fined not more than $25,000 or confined in a state correctional facility for not less than two years nor more than five years, or both fined and confined.

(b) A person attempting to perform an abortion violation of this article is guilty of a felony and, upon conviction, shall be fined not more than $10,000 or confined in a state correctional facility for not less than one year nor more than two years, or both fined and confined.

§16-2P-7.  Exemption.


(a) This article does not apply to a physician licensed in West Virginia performing a termination of a pregnancy or assisting in performing a termination of a pregnancy due to a medical emergency.

§16-2P-8.  Construction.


The construction of existing statutes and regulations that regulate or recognize abortion in West Virginia that conflict with or antagonistic to this article shall be repealed as null and void and shall recognize the prohibition of abortion as provided in this article. If this article is challenged and enjoined pending a final judicial decision, the existing statutes and regulations that regulate or recognize abortion shall remain in effect during that time.

 

NOTE: The purpose of this bill is to enact the West Virginia Human Life Protection Act. The bill makes abortion and attempted abortion felony offenses except in cases where abortion is necessary in order to prevent a serious health risk to the unborn child's mother. The bill provides that a woman who receives an abortion will not be held criminally culpable or civilly liable for receiving the abortion. The bill makes legislative findings. The bill defines terms.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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