Senate Bill No. 268

(By Senators Wagner, Plymale, Ross, Bailey, Bowman and Kimble)


[Introduced February 6, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]

A BILL to repeal sections eight and nine, article two-f, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections one, two, three, four, five, six and seven of said article, all relating to requiring parental consent before abortions can be performed on minors; legislative findings and purpose; definitions; parental consent for abortion for unemancipated minor; limitations; criminal penalties; substitute parental consent provisions; and severability.

Be it enacted by the Legislature of West Virginia:
That sections eight and nine, article two-f, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections one, two, three, four, five, six and seven of said article be amended and reenacted, all to read as follows:


§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; and (iv) in protecting unborn

life throughout pregnancy.

It is, therefore, the intent of the Legislature to further
these interests, including the reasonable regulation of abortion in accordance with current law by requiring parental consent before an abortion involving an unemancipated minor may take place. by enacting this parental notice provision.
§16-2F-2. Definitions.
For the purposes of this article, the following terms are defined as follows:
(a) "Abortion" means the use of any means to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by such means will, with reasonable likelihood, cause the death of the fetus;
(b) "Fetus" means any individual human organism from fertilization until birth.
§16-2F-3. Parental consent required for unemancipated mino
r to
have an abortion.

No person may knowingly perform an abortion upon a pregnant unemancipated minor unless the attending physician has secured the written consent of the minor female and both parents of the pregnant female, or in the event only one parent is living, or if one parent's whereabouts is unknown and such parent cannot be located by due diligence then the remaining parent, or in the event no parents are living or available, then the guardian or conservator of the unemancipated minor female.
§16-2F-4. Limitations.
No consent is required under this article in the event of either of the following:
(a) The attending physician certifies in the medical record that the abortion is necessary to prevent the death of the pregnant female and there is insufficient time to obtain the required consent; or
(b) The pregnant female declares that she is a victim of sexual abuse, neglect or physical abuse, and the attending physician has notified the appropriate police department or other governmental agency about the alleged sexual abuse, neglect or physical abuse.
§16-2F-5. Penalty.
Performance of an abortion in violation of this article is a misdemeanor and shall also be grounds for a civil action by a person wrongfully denied the right to consent. A person shall not be held liable under this section if the person establishes by reliable evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant female were sufficient to rely upon, as bona fide and true, in order to comply with this section, or if the person has attempted with reasonable diligence to obtain consent, but, due to no fault of him or herself, has been unable to do so.
Upon conviction hereunder, a person is guilty of a misdemeanor punishable by a fine, not to exceed five thousand dollars, or by confinement in the regional jail for a period not more than six months, or by both such fine and confinement.
§16-2F-6. Substitute consent provisions.
(a) If section three of this article is ever determined to be invalid by any court of competent jurisdiction, the following paragraphs in this section shall be incorporated as additional subsections of section three: Provided, That if such determination of invalidity is thereafter reversed or otherwise overturned, section three shall have full force and effect, without being modified by the addition of the following paragraphs, which shall then have no force or effect until or unless section three is later, again, declared invalid by a court of competent jurisdiction.
(b) If such consent is refused or cannot be obtained from one or both of her parents or guardian or conservator, any judge
of a court of competent jurisdiction shall, upon petition or motion, and after an appropriate hearing, authorize a physician to perform the abortion if such judge determines that the pregnant female is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the pregnant female is not mature, or if the pregnant female does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without consent of her parents, guardian or conservator would be in her best interests. In the event the judge determines that the pregnant female's best interest would be served by the performance of an abortion, he or she shall authorize a physician to perform an abortion.
(c) A pregnant female may participate in judicial proceedings on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise the pregnant female that she has a right to court appointed counsel, and shall, upon her request, provide her with such counsel.
(d) The pregnant female's parents, guardian or conservator shall receive written notice of the pending proceeding, at least twenty-four hours before it takes place. The notice shall be addressed to the parent, guardian or conservator at their usual place of abode. It shall be delivered personally to the parent by the physician or an agent thereof. In lieu of the delivery required herein, notice shall be made by certified mail, addressed to the parent, guardian or conservator at their usual place of abode with return receipt requested with restricted delivery to the addressee. For the purpose of this section, "restricted delivery" means that only a postal employee is authorized to deliver the notice to the addressee and that such postal employee may only make the delivery of notice to the particular addressee. In such case, the time of delivery shall be deemed to occur at twelve o'clock noon on the next day on which regular mail delivery takes place, subsequent to mailing. The pregnant female's parents, guardian or conservator shall be permitted to participate as parties in any judicial proceeding held under the provisions of this article.
(e) Judicial proceedings held pursuant to this article shall be confidential and, therefore, closed to the public. They shall also be given precedence over other pending matters so that the court may reach a decision promptly and without delay. This shall serve the best interests of the pregnant female. A judge who conducts proceedings under this article shall make written factual findings and conclusions of law in support of the decision he or she renders.
(f) An expedited confidential appeal shall be available to any pregnant female to whom a court denies authorization for an abortion without parental consent, or to the pregnant female's parents, guardian or conservator when the court issues authorization without their consent. No filing fees are required of any pregnant female under the provisions of this article either in circuit court or in the supreme court of appeals of this state. Access to the circuit court and access to the appellate court for the purposes of effectuating the provisions of this article shall be afforded twenty-four hours a day, seven days a week.

NOTE: The purpose of this bill is to require parental consent before an unemancipated minor may obtain an abortion except in certain instances when obtaining such consent is not feasible. The bill also requires the consent of a conservator or guardian, in the event no parents are available to grant consent.

With the exception of section one,the article has been completely rewritten; therefore all statutory language contained in the various sections except section one is new; therefore, strike-throughs and underscoring have been omitted in these sections.

In section one strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.