H. B. 2248
(By Delegates Warner, Pettit, Kelley, Yeager
Michael, Calvert and Pulliam)
[Introduced January 25, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-i, relating to
abortions; defining certain terms; requiring informed
consent for voluntary abortions; providing for distribution
of certain printed materials concerning abortions; providing
for informed consent in medical emergencies; providing a
penalty for violations of certain sections of the article;
allowing certain civil damages; and providing for the
privacy of certain women plaintiffs.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two-i, to read
as follows:
ARTICLE 2I. INFORMED CONSENT FOR VOLUNTARY ABORTIONS.
§16-2I-1. Purpose.
It is the purpose of this article to provide a framework in
which women must receive medically accurate information and
counseling concerning questions relating to abortion, in addition
to safe and competent medical provision therefor.
§16-2I-2. Definitions.
(a) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device used
intentionally 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.
(b) "Medical emergency" means that condition which, on the
basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to
necessitate the immediate abortion of her pregnancy to avert her
death or for which a delay will create serious risk of death or
substantial and irreversible impairment of a major bodily
function.
(c) "Probable gestational age of the unborn child" means
what, in the judgment of the physician, will with reasonable
probability be the gestational age of the unborn child at the
time the abortion is planned to be performed.
§16-2I-3. Informed consent -- General rule.
No abortion may be performed except with the voluntary and
informed consent of the woman 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 woman is told the following by the physician who is
to perform the abortion or by the referring physician, at least
twenty-four hours before the abortion:
(1) The name of the physician who will perform the abortion;
(2) 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;
(3) The probable gestational age of the unborn child at the
time the abortion is to be performed; and
(4) The medical risks associated with carrying her child to
term.
(b) The woman is informed, by the physician or his or her
agent, at least twenty-four hours before the abortion:
(1) That medical assistance benefits may be available for
prenatal care, childbirth and neonatal care;
(2) That the father is liable to assist in the support of
her child, even in instances in which the father has offered to
pay for the abortion; and
(3) That she has the right to review the printed materials described in section four of this article. The physician or his
or her agent shall orally inform the woman the materials have
been provided by this state and that they describe the unborn
child and list agencies which offer alternatives to abortion. If
the woman chooses to view the materials, copies of them shall be
furnished to her.
(c) The woman certifies in writing, prior to the abortion,
that the information described in subsections (a) and (b)of this
section has been furnished her, and that she has been informed of
her opportunity to review the information referred to in
subdivision (3), subsection (b) of this section.
(d) Prior to the performance of the abortion, the physician
who is to perform the abortion or his or her agent receives a
copy of the written certification prescribed by subsection (c) of
this section.
§16-2I-4. Printed information.
(a) General rule. -- The department of health and human
resources shall cause to be published in easily understood
English, within sixty days after the effective date of this
article, the following printed materials:
(1) Geographically indexed materials designed to inform
women of public and private agencies and services available to
assist a woman 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, in which they might be
contacted, or, at the option of the department of health and
human resources, printed materials including a toll-free,
twenty-four hour a day telephone number 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 women of the probable
anatomical and physiological characteristics of the unborn child
at two-week gestational increments from the time when a woman can
be known to be pregnant to full term, including any pictures or
drawings representing the development of unborn children at
two-week gestational increments: Provided, That any pictures or
drawings must contain the dimensions of the fetus and must be
realistic and appropriate for the stage of pregnancy depicted.
The materials shall include any relevant information on the
possibility of the unborn child's survival. The materials shall
be objective, nonjudgmental and designed to convey only accurate
scientific information about the unborn child 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, the medical risks commonly associated with each
procedure and the medical risks commonly associated with carrying
a child to term.
(b) Format. -- The materials shall be printed in a typeface
large enough to be clearly legible.
(c) Free distribution. -- The materials required under this
section shall be available at no cost from the department of
health and human resources upon request.
§16-2I-5. Medical emergency.
When a medical emergency compels the performance of an
abortion, the physician shall inform the patient, prior to the
abortion if possible, of the medical indications supporting his
or her judgment that an abortion is necessary to avert the
patient's death or that a delay will create serious risk of death
or substantial and irreversible impairment of a major bodily
function.
§16-2I-6. Penalty for performance of abortions without informed
consent.
Anyone who intentionally performs or attempts to perform an
abortion without obtaining the voluntary and informed consent of
the patient as required by this article shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than fifty dollars nor more than five hundred dollars, or
imprisoned in the county or regional jail not more than one year, or both fined and imprisoned. No penalty may be assessed against
the woman upon whom the abortion is performed or attempted to be
performed. No criminal penalty or civil liability for failure to
comply with subdivision (3), subsection (b), section three of
this article or that portion of subsection (c), section three,
requiring a written certification that the woman has been
informed of her opportunity to review the information referred to
in section four of this article may be assessed unless the
department of health and human resources has made the printed
materials available at the time the physician or his or her agent
is required to inform the patient of her right to review them.
§16-2I-7. Civil damages for performance of abortions without
informed consent.
Any woman upon whom an abortion has been performed without
complying with the provisions of this article, the father of the
unborn child who was the subject of an abortion, or the
grandparent of an unborn child may maintain an action against the
person who performed the abortion for ten thousand dollars in
punitive damages in addition to treble the actual damages the
plaintiff may have sustained. Any woman upon whom an abortion
has been attempted without complying with this article may
maintain an action against the person who attempted to perform
the abortion for five thousand dollars in punitive damages and
treble the actual damages the plaintiff may have sustained.
§16-2I-8. Privacy of woman upon whom an abortion is performed
or attempted.
In every civil or criminal proceeding or action brought
under this article, the court shall rule whether the anonymity of
any woman upon whom an abortion is performed or attempted shall
be preserved from public disclosure if she does not give her
consent to such disclosure. The court, upon motion or sua
sponte, shall make a ruling and, upon determining that her
anonymity should be preserved, shall issue orders to the parties,
witnesses and counsel and shall direct the sealing of the record
and exclusion of individuals from courtrooms or hearing rooms, to
the extent necessary to safeguard her identity from public
disclosure. Each order shall be accompanied by specific written
findings explaining why the anonymity of the woman should be
preserved from public disclosure, why the order is essential to
that end, how the order is narrowly tailored to serve that
interest and why no reasonable less restrictive alternative
exists. In the absence of written consent of the woman upon whom
an abortion has been performed or attempted, anyone, other than
a public official, who brings an action under section seven of
this article shall do so under a pseudonym. This section may not
be construed to conceal the identity of the plaintiff or of
witnesses from the defendant.
NOTE: The purpose of this bill is to require a specific
informed consent procedure at least twenty-four hours before a
woman voluntarily undergoes an abortion. The bill requires
strict compliance with the informed consent procedure. The bill
also provides for criminal penalties and it allows recovery for
punitive and treble compensatory damages by the patient, the
father of the fetus and the grandparents of the fetus when the
specified procedures have not been followed.
This is a new article; therefore, strike-throughs and
underscoring have been omitted.