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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 352
By Senators Rucker, Azinger, Boley, Chapman, Deeds, Grady, Martin, Maynard, Phillips, Smith, Stover, Stuart, Tarr, Taylor, Woodrum, Karnes, and Roberts
[Introduced January 12, 2024; referred
to the Committee on Health and Human Resources]
A BILL to amend and reenact §16-2R-2, §16-2R-6, §16-2R-7, §16-2R-8, and §16-2R-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §16-2R-10, §16-2R-11, §16-2R-12, and §16-2R-13, all relating to modifying the Unborn Child Protection Act; providing for definitions; creating a process of informed consent; providing for printed information; providing for the creation of an Internet website; providing for an informed consent procedure in case of medical emergency; providing for reporting; providing for licensure action; providing for protection of aborted fetuses born alive; and providing for severability.
Be it enacted by the Legislature of West Virginia:
The definitions set forth in this section are controlling for purposes of this article and of this code, irrespective of terms used in medical coding, notations, or billing documents. For purposes of this article:
"Abortion" means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a patient known to be pregnant and with intent to cause the death and expulsion or removal of an embryo or a fetus. This term does not include the terms "intrauterine fetal demise" or "stillbirth" or "miscarriage" as defined in this section.
"Attempt to perform or induce an abortion" means an act or the omission of an act that, under the circumstances as the person so acting or omitting to act believes them to be, constitutes a substantial step in a course of conduct intended to culminate in an abortion.
"Born alive" means the complete expulsion or extraction of the fetus, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
"Chemical abortion" means the use or prescription of an abortion-inducing drug dispensed with the intent to cause an abortion.
"Commissioner" means the Commissioner of the Bureau for Public Health of the West Virginia Department of Health and Human Resources.
"Designee" means a person licensed under Chapter 30 of this code practicing within his or her scope of practice.
"Embryo" means the developing human from the time of fertilization until the end of the eighth week of gestation.
"Fertilization" means the fusion of a human spermatozoon with a human ovum.
"Fetus" means the developing human in the postembryonic period from nine weeks after fertilization until birth.
"Licensed medical professional" means a person licensed under §30-3-1 et seq., or §30-14-1 et seq., of this code.
"Implantation" means when a fertilized egg has attached to the lining of the wall of the uterus.
"Intrauterine fetal demise" or "stillbirth" means the unintended or spontaneous loss of a fetus after the 19th week of pregnancy.
"Miscarriage" means the unintended or spontaneous loss of an embryo or a fetus before the 20th week of pregnancy. This term includes the medical terms "spontaneous abortion," "missed abortion," and "incomplete abortion".
"Nonviable" means an embryo or a fetus has a lethal anomaly which renders it incompatible with life outside of the uterus.
"Partial-birth abortion" means an abortion performed on a live fetus after partial vaginal delivery.
"Probable gestational age of the embryo or fetus" means what, in the judgment of the licensed medical professional, will with reasonable probability be the gestational age of the embryo or fetus at the time the abortion is planned to be performed.
"Reasonable medical judgment" means a medical judgment that would be made by a licensed medical professional who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
"Stable Internet website" means a website that, to the extent reasonably practicable, is safeguarded from having its content altered by another other than the Department of Health and Human Resources.
"Unemancipated minor" means a person younger than 18 years of age who is not, or has not been, married or judicially emancipated.
Any abortion performed or induced in this state is subject to the reporting requirements of §16-5-22.
An abortion may not be performed in this state except in compliance with the provisions set forth in §16-2R-3 of this code and with the voluntary and informed consent of the female upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if, and only if:
(a) The female is told the following, by telephone or in person, by the licensed medical professional or the designee to whom the responsibility has been delegated by the licensed medical professional who is to perform the abortion at least 24 hours before the abortion:
(1) The particular medical risks associated with the particular abortion procedure to be employed, including, among other things pertinent to informed consent, the risks of infection, hemorrhage, danger to subsequent pregnancies, infertility and the possibility of reversing the effects of a chemical abortion;
(2) The probable gestational age of the embryo or fetus at the time the abortion is to be performed;
(3) The medical risks associated with carrying her child to term;
(4) That she has the opportunity to see the ultrasound of her fetus and it is her right to view or decline to view the ultrasound image.
(b) The female is informed, by telephone or in person, by the licensed medical professional who is to perform the abortion, or by an agent of the licensed medical professional, at least 24 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 §16-2R-7 of this code, 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 §16-2R-7 of this code 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 licensed medical professional, or an agent of the licensed medical professional 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 24 hours before the abortion or mailed to her at least 72 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 (b)(4) 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 female 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 female 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 (b)(3) of this section.
Before performing the abortion procedure, the licensed medical professional who is to perform the abortion or the licensed medical professional's agent shall obtain a copy of the executed certification required by the provisions of subsections (b) and (c) of this section.
(d) If a chemical abortion involving the two-drug process of mifepristone is recommended or initiated and then a prostaglandin such as misoprostol is planned to be used at a later time, the female shall be informed that:
(1) Studies suggest that it may be possible to counteract the intended effects of a mifepristone chemical abortion by taking progesterone if the female changes her mind, before taking the second drug.
(2) After the first drug involved in the two-drug process is dispensed in a mifepristone chemical abortion, the licensed medical professional or agent of the licensed medical professional shall provide written medical discharge instructions to the pregnant female which shall include the statement:
"If you change your mind and decide to try to counteract the intended effects of a mifepristone chemical abortion, if the second pill has not been taken, please consult with a licensed medical professional knowledgeable about discontinuing a medical abortion or you can get immediate help by going to website https://www.abortionpillreversal.com.
(i) You might experience a complete abortion without ever taking misoprostol;
(ii) You might experience a missed abortion, which means the fetus is no longer viable, but the fetus did not leave your body; or
(iii) It is possible that your pregnancy may continue; and
(iv) You should consult with your licensed medical professional."
(3) The female shall certify, as part of the informed consent process for any medical procedure, that she has been informed about the above possibilities regarding a chemical abortion.
(4) Notwithstanding any law to the contrary, a licensed medical profession acting in conformity with the informed consent provisions of this section relating to the possibility of counteracting the intended effects of a chemical abortion, or a licensed medical profession prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion is not liable for any loss, damage, physical injury, or death arising from any information provided by the licensed medical profession related to counteracting the intended effects of a chemical abortion or arising from prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion
(e) Any licensed medical professional that administers, or causes to be administered, a test for any disability in the fetus, when such tests account for the presence or presumed presence of a disability or diagnosis in a fetus including, but not limited to, chromosomal disorders or morphological malformations occurring as the result of atypical gene expressions then the licensed medical professional or the designee shall provide the patient with educational information made available by the bureau as provided in this section if the test result confirms the presence of a disability.
(f) Any licensed medical professional that administers, or causes to be administered, a test or ultrasound indicating that the fetus is nonviable as defined in §16-2R-2 of this code, the female is informed, by telephone or in person, by the licensed medical professional or the licensed medical professional's agent:
(1) That perinatal hospital and hospice services are available;
(2) This service is an alternative to abortion;
(3) That she has the right to review the printed materials described in §16-2R-7 of this code;
(4) That these materials are available on a state sponsored website, and
(5) What the website address is where she can access this information.
If a physical examination, tests or the availability of other information to the licensed medical professional or a designee to whom the responsibility has been delegated by the licensed medical professional subsequently indicate, in the medical judgment of the licensed medical professional or a designee to whom the responsibility has been delegated by the licensed medical professional, 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.
A licensed medical professional who knowingly and willfully performs, induces, or attempts to perform or induce an abortion, with the intent to violate the provisions of §16-2R-3 of this code, is subject to disciplinary action by his or her applicable licensing board. If the licensing board finds that the licensed medical professional has knowingly and willfully performed, induced, or attempted to perform or induce an abortion, with the intent to violate the provisions of §16-2R-3 of this code, the licensing board shall revoke medical professional’s license.
(a) Within 90 days of the effective date of this article, upon its reenactment during the 2024 Regular Session, the Secretary of the Department of Health and Human Resources shall cause to be published, in English and in each language which is the primary language of two percent or more of the state's population, as determined by the most recent decennial census performed by the U.S. census bureau, and shall cause to be available on the website provided in §16-2R-8 of this code the following printed materials in such a way as to ensure that the information is easily comprehensible:
(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 A 24-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;
(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, and the possible detrimental psychological effects of abortion; and the medical risks commonly associated with carrying a child to term and
(3) Materials designed to inform the female of the range of possibilities regarding the effects and risks of a mifepristone chemical abortion or an attempt to counteract it and information on and assistance with the resources that may be available.
(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 11-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.
(a) Whenever a licensed medical professional performs or induces, or attempts to perform or induce an abortion and the child is born alive, the licensed medical professional shall:
(1) Exercise the same degree of reasonable medical judgment to preserve the life and health of the child in the same manner as the licensed medical professional would render to any child alive at birth of the same gestational age;
(2) Ensure that the child is immediately transported and admitted to an appropriate medical facility.
(b) Any licensed medical professional who knowingly and willfully violates subsection (a) of this section shall be considered to have breached the standard of care owed to patients and is subject to discipline from the appropriate licensure board for such conduct, including but not limited to loss of professional license to practice.
(c) Any person, not subject to subsection (a) of this section, who knowingly and willfully violates subsection (a) of this section is guilty of the unauthorized practice of medicine in violation of §30-3-13 of this code and, upon conviction thereof, is subject to the penalties contained in that section: Provided, That the provisions of this subsection (c) enacted during the third extraordinary session of the Legislature, 2022, shall be effective 90 days from passage.
(d) In addition to the penalties referenced in this section, a patient may seek any remedy otherwise available to the patient by applicable law.
(e) This section shall not be construed to subject any patient upon whom an abortion is performed or induced or attempted to be performed or induced to a criminal penalty for any violation of this section as a principal, accessory or accomplice, conspirator, or aider and abettor.
(a) Within 90 days of the effective date of this article upon the reenactment of this article during the 2024 Regular Session, the secretary of the Department of Health and Human Resources shall develop and maintain a stable Internet website to provide the information required to be provided pursuant to the provisions of §16-2R-7 of this code. No information regarding persons visiting the website may be collected or maintained. The secretary of the Department of Health and Human Resources shall monitor the website on a daily basis to prevent and correct tampering.
(b) The Bureau for Public Health shall make the following available through the bureau's publicly accessible internet website:
(1) Up-to-date evidence-based information about any in-utero disability or diagnosis that has been peer reviewed by medical experts and any national disability rights organizations. The information provided shall include the following:
(A) Physical, developmental, educational, and psychological outcomes;
(B) Life expectancy;
(C) Clinical course;
(D) Intellectual and functional development;
(E) Treatment options; and
(F) Any other information the bureau deems necessary.
(G) Contact information regarding first call programs and support services, including the following:
(i) Information hotlines specific to any in-utero fetal disabilities or conditions;
(ii) Relevant resources centers or clearinghouses;
(iii) Information about adoption specific to disabilities;
(iv) National and local disability rights organizations; and
(v) Education and support programs.
(H) Information regarding perinatal hospice and palliative care as provided in section §16-2R-6(f).
(c) The information provided in accordance with this section shall conform to the applicable standard or standards provided in the Enhanced National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care as adopted by the United States Department of Health and Human Resources and published in the Federal Register on September 24, 2013.
(d) The website:
(1) Must use enhanced, user-friendly search capabilities to ensure that the information described in subsection seven of this article is easily accessible;
(2) Must use searchable terms by keywords and phrases, specifically to ensure that entering the terms "abortion," "abortion pill reversal," "disability," "fetal abnormality," and "non-medically viable fetus" yields the contents found in subsection seven of this article.
(3) Must ensure that the information set forth in subsection seven of this article is printable.
(4) Must give clear prominent instructions on how to receive the information in printed form; and
(5) Must be accessible to the public without requiring registration or use of a username, a password, or another user identification.
Severability as provided in §2-2-10(b)(7) of this code is applicable to this article: Provided, That if this entire article is judicially determined to be unconstitutional, then the provisions of §16-2F-1 et seq., §16-2I-1 et seq., 16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, and §33-42-8 of this code shall become immediately effective: Provided, however, That if a provision or provisions of §16-2R-1 et seq. of this code are judicially determined to be unconstitutional, then the provisions of §16-2F-9, §16-2I-9, §16-2M-7, §16-2O-1(e), §16-2P-1(d), §16-2Q-1(m), and §33-42-8(d) of this code are not effective.
When a medical emergency as defined in §16-2R-2 of this code compels the performance of an abortion in compliance with the provisions set forth in §16-2R-3 of this code, the licensed medical professional or designee shall inform the female, prior to the abortion if possible, of the medical indications supporting the condition or circumstance that an abortion is necessary to avert her death or that a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function.
Any abortion performed or induced in this state is subject to the reporting requirements of §16-5-22 of this code.
A licensed medical professional who knowingly and willfully performs, induces, or attempts to perform or induce an abortion, with the intent to violate the provisions of §16-2R-3 of this code, is subject to disciplinary action by his or her applicable licensing board. If the licensing board finds that the licensed medical professional has knowingly and willfully performed, induced, or attempted to perform or induce an abortion, with the intent to violate the provisions of §16-2R-3 of this code, the licensing board shall revoke medical professional’s license.
(a) Whenever a licensed medical professional performs or induces, or attempts to perform or induce an abortion and the child is born alive, the licensed medical professional shall:
(1) Exercise the same degree of reasonable medical judgment to preserve the life and health of the child in the same manner as the licensed medical professional would render to any child alive at birth of the same gestational age;
(2) Ensure that the child is immediately transported and admitted to an appropriate medical facility.
(b) Any licensed medical professional who knowingly and willfully violates subsection (a) of this section shall be considered to have breached the standard of care owed to patients and is subject to discipline from the appropriate licensure board for such conduct, including but not limited to loss of professional license to practice.
(c) Any person, not subject to subsection (a) of this section, who knowingly and willfully violates subsection (a) of this section is guilty of the unauthorized practice of medicine in violation of §30-3-13 of this code and, upon conviction thereof, is subject to the penalties contained in that section: Provided, That the provisions of this subsection (c) enacted during the regular session of the Legislature, 2024, shall be effective 90 days from passage.
(d) In addition to the penalties referenced in this section, a patient may seek any remedy otherwise available to the patient by applicable law.
(e) This section shall not be construed to subject any patient upon whom an abortion is performed or induced or attempted to be performed or induced to a criminal penalty for any violation of this section as a principal, accessory or accomplice, conspirator, or aider and abettor.
Severability as provided in §2-2-10(b)(7) of this code is applicable to this article: Provided, That if this entire article is judicially determined to be unconstitutional, then the provisions of §16-2F-1 et seq., §16-2I-1 et seq., 16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, and §33-42-8 of this code shall become immediately effective: Provided, however, That if a provision or provisions of §16-2R-1 et seq. of this code are judicially determined to be unconstitutional, then the provisions of §16-2F-9, §16-2I-9, §16-2M-7, §16-2O-1(e), §16-2P-1(d), §16-2Q-1(m), and §33-42-8(d) of this code are not effective.
NOTE: The purpose of this bill is to modify the Unborn Child Protection act. The bill provides for definitions. The bill creates a process of informed consent. The bill provides for printed information. The bill provides for the creation of an Internet website. The bill provides for an informed consent procedure in case of medical emergency. The bill provides for reporting. The bill provides for licensure action. The bill provides for protection of aborted fetuses born alive. Finally, the bill provides for severability.
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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