H. B. 4449
(By Delegate Houston)
[Introduced February 7, 2006; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §33-42-9, relating to
providing that health care providers, health care institutions
or health care payers are not required to participate in
abortion procedures that violate their respective consciences;
providing immunity for health care providers, institutions and
payers for refusing to participate in abortion procedures;
prohibiting discrimination against health care providers,
institutions and payers that refuse to participate in abortion
procedures; prohibiting the denial of assistance payments due
to a refusal to participate in abortion procedures; and
providing civil penalties for violations of said section.
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 section, designated §33-42-9, to read as
follows:
ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-42-9. West Virginia Abortion Procedure Rights of Conscience
Act.
(a) Short title. -- This section may be known and cited as the
"West Virginia Abortion Procedure Rights of Conscience Act."
(b) Definitions. -- As used in this section, the following
words and phrases have the following meanings:
(1) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substances 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 fetus.
(2) "Abortion procedures" means any phase of patient medical
care, treatment or procedure relating to performing an abortion,
including, but not limited to, the following: Patient referral,
counseling, therapy, testing, diagnosis or prognosis, research,
instruction, prescribing, dispensing or administering any device,
drug, or medication, surgery or any other care or treatment
rendered by health care providers or health care institutions.
(3) "Health care provider" means any individual who may be
asked to participate in any way in an abortion procedure, including, but not limited to: A physician, physician's assistant,
nurse, nurses? aide, medical assistant, hospital employee, clinic
employee, nursing home employee, pharmacist, pharmacy employee,
researcher, medical or nursing school faculty, student or employee,
counselor, social worker or any professional, paraprofessional, or
other person who furnishes, or assists in the furnishing of, an
abortion procedure.
(4) "Health care institution" means any public or private
organization, corporation, partnership, sole proprietorship,
association, agency, network, joint venture, or other entity that
is involved in providing health care services, including, but not
limited to: Hospitals, clinics, medical centers, ambulatory
surgical centers, private physicians' offices, pharmacies, nursing
homes, university medical schools and nursing schools, medical
training facilities, or other institutions or locations where
abortion procedures are provided to any person.
(5) "Health care payer" means any entity or employer that
contracts for, pays for, or arranges for the payment of, in whole
or in part, any abortion procedure, including, but not limited to,
health maintenance organizations, health plans, insurance companies
or management services organizations.
(6) "Employer" means any individual or entity that pays for or
provides health benefits or health insurance coverage as a benefit
to its employees, whether through a third party, a health maintenance organization, a program of self-insurance, or some
other means.
(7) "Participate in an abortion procedure" means to counsel,
advise, provide, perform, assist in, refer for, admit for purposes
of providing, or participate in providing, any abortion procedure
or any form of such service.
(8) "Pay" or "payment" means pay, contract for, or otherwise
arrange for the payment of, in whole or in part.
(9) "Conscience" means the religious, moral or ethical
principles held by a health care provider, the health care
institution or health care payer. For purposes of this section, a
health care institution or health care payer?s conscience shall be
determined by reference to its existing or proposed religious,
moral or ethical guidelines, mission statement, constitution,
bylaws, articles of incorporation, regulations or other relevant
documents.
(c) Rights of conscience of health care providers. --
A health
care provider has the right not to participate, and no health care
provider may be required to participate in an abortion procedure
that violates his or her conscience.
(d) Immunity from liability. --
No health care provider shall
be civilly, criminally, or administratively liable for declining to
participate in an abortion procedure that violates his or her
conscience.
(e) Discrimination. --
It shall be unlawful for any person,
health care provider, health care institution, public or private
institution, public official, or any board which certifies
competency in medical specialties to discriminate against any
health care provider in any manner based on his or her declining to
participate in an abortion procedure that violates his or her
conscience. For purposes of this section, discrimination includes,
but is not limited to: Termination, transfer, refusal of staff
privileges, refusal of board certification, adverse administrative
action, demotion, loss of career specialty, reassignment to a
different shift, reduction of wages or benefits, refusal to award
any grant, contract, or other program, refusal to provide residency
training opportunities, or any other penalty, disciplinary or
retaliatory action.
(f) Rights of conscience of health care institutions. --
A
health care institution has the right not to participate, and no
health care institution may be required to participate in an
abortion procedure that violates its conscience.
(g) Immunity from liability. --
A health care institution that
declines to provide or participate in an abortion procedure that
violates its conscience shall not be civilly, criminally or
administratively liable if the institution provides a consent form
to be signed by a patient before admission to the institution
stating that it reserves the right to decline to provide or participate in an abortion procedure that violates its conscience.
(h) Discrimination. --
It shall be unlawful for any person,
public or private institution, or public official to discriminate
against any health care institution, or any person, association,
corporation, or other entity attempting to establish a new health
care institution or operating an existing health care institution,
in any manner, including, but not limited to, any denial,
deprivation or disqualification with respect to licensure, any aid
assistance, benefit or privilege, including staff privileges, or
any authorization, including authorization to create, expand,
improve, acquire, or affiliate or merge with any health care
institution, because such health care institution, or person,
association, or corporation planning, proposing, or operating a
health care institution, declines to participate in an abortion
procedure which violates the health care institution?s conscience.
(I) Denial of aid or benefit. --
It shall be unlawful for any
public official, agency, institution, or entity to deny any form of
aid, assistance, grants or benefits, or in any other manner to
coerce, disqualify or discriminate against any person, association,
corporation or other entity attempting to establish a new health
care institution or operating an existing health care institution
because the existing or proposed health care institution declines
to participate in an abortion procedure contrary to the health care
institution?s conscience.
(j) Rights of conscience of health care payers. --
A health
care payer has the right to decline to pay, and no health care
payer shall be required to pay for or arrange for the payment of an
abortion procedure that violates its conscience.
(k) Immunity from liability. --
No health care payer and no
person, association, corporation or other entity that owns,
operates, supervises or manages a health care payer shall be
civilly or criminally liable by reason of the health care payer?s
declining to pay for or arrange for the payment of an abortion
procedure that violates its conscience.
(l) Discrimination. --
It shall be unlawful for any person,
public or private institution, or public official to discriminate
against any health care payer, or any person, association,
corporation, or other entity: (1) Attempting to establish a new
health care payer; or (2) operating an existing health care payer,
in any manner, including, but not limited to, any denial,
deprivation, or disqualification with respect to licensure, aid,
assistance, benefit, privilege or authorization, including, but not
limited to, any authorization to create, expand, improve, acquire,
affiliate or merge with any health care payer, because a health
care payer, or a person, association, corporation or other entity
planning, proposing or operating a health care payer declines to
pay for or arrange for the payment of any abortion procedure that
violates its conscience.
(m) Denial of aid or benefits. --
It shall be unlawful for any
public official, agency, institution or entity to deny any form of
aid, assistance, grants, or benefits or in any other manner coerce,
disqualify or discriminate against any health care payer, or any
person, association, corporation or other entity attempting to
establish a new health care payer or operating an existing health
care payer because the
existing or proposed health care payer
declines to pay for, or arrange for the payment of, any abortion
procedure that is contrary to its conscience.
(n) Civil remedies. --
A civil action for damages or
injunctive relief, or both, may be brought for the violation of any
provision of this section. It shall not be a defense to any claim
arising out of the violation of this section that the violation was
necessary to prevent additional burden or expense on any other
health care provider, health care institution, individual or
patient.
(o) Damage remedies. -- Any individual, association,
corporation, entity or health care institution injured by any
public or private individual, association, agency, entity or
corporation by reason of any conduct prohibited by this section may
commence a civil action. Upon finding a violation of this section,
the aggrieved party shall be entitled to recover threefold the
actual damages, including pain and suffering, sustained by such
individual, association, corporation, entity or health care institution, the costs of the action, and reasonable attorney?s
fees; but in no case shall recovery be less than five thousand
dollars for each violation in addition to costs of the action and
reasonable attorney?s fees. These damage remedies shall be
cumulative, and not exclusive of other remedies afforded under any
other state or federal law.
(p) Injunctive remedies
. --
The court in such civil action may
award injunctive relief, including, but not limited to, ordering
reinstatement of a health care provider to his or her prior job
position.
NOTE: The purpose of this bill is to provide that health care
providers, health care institutions or health care payers are not
required to participate in abortion procedures that violate their
respective consciences while providing immunity for health care
providers, institutions and payers for refusing to participate in
abortion procedures. The bill would also prohibit discrimination
against health care providers, institutions and payers that refuse
to participate in abortion procedures and prohibit the denial of
assistance payments due to such a refusal to participate in
abortion procedures. Finally, the bill provides civil penalties
for violations.
This section is new; therefore, strike-throughs and
underscoring have been omitted.