Date Requested: January 15, 2015
Time Requested: 03:39 PM
Agency: Health and Human Resources, Department of
CBD Number: Version: Bill Number: Resolution Number:
2193 Introduced x
CBD Subject: Human Rights


5101 - Vital Statistics Service Fund, 0407-Central Office General Administrative Fund

Sources of Revenue:

General Fund,Special Fund

Legislation creates:

A New Program

Fiscal Note Summary

Effect this measure will have on costs and revenues of state government.

    The purpose of this bill is to create the "West Virginia Pain-Capable Unborn Child Protection Act" that asserts a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain. The bill prohibits abortion of unborn child of twenty or more weeks post-fertilization age.
    The Department of Health and Human Resources (Department) through the Bureau for Public Health estimates that the cost to fund the proposed legislation's publication requirements can be absorbed within the Department's current operating budget. The estimated costs of the proposed legislation consists of staff time in updating forms, developing and issuing a public report providing statistics concerning the previous calendar year's data, as well as the cost of printing. No additional funding would be necessary for the Department to comply with the proposed legislation.
    Section §16-2M-9(a) of this bill creates a special revenue fund known as the West Virginia Pain-Capable Unborn Child Protection Act Litigation Fund for the purpose of providing funds to pay for any costs and expenses incurred by the State Attorney General in relation to actions surrounding defense of this law. Estimated costs would need to be provided by State Attorney General.

Fiscal Note Detail

Effect of Proposal Fiscal Year
Fiscal Year
(Upon Full
1. Estmated Total Cost 0 0 0
Personal Services 0 0 0
Current Expenses 0 0 0
Repairs and Alterations 0 0 0
Assets 0 0 0
Other 0 0 0
2. Estimated Total Revenues 0 0 0

Explanation of above estimates (including long-range effect):

    There is not data available to reliably estimate the potential fiscal impact to the Department. Although these services are provided, the data that would be needed to differentiate those services provided at 20 weeks or later post-fertilization are not available, and we cannot reliably determine how many such services/procedures would not have been performed if this legislation were in place. Total costs for abortion services for SFY14 were just under $300,000 (all state dollars; no Federal matching funds claimed).


    There are technical problems with some of the basic concepts in the bill. The bill disallows any abortion that has reached a "post fertilization age" of 20 weeks or more gestation except when necessary to preserve the health or life of the mother. And the bill specifies for those procedures that "....the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive,..." So, for those pregnancies 20 weeks or more gestation in which it is deemed necessary to perform an abortion to preserve the life or health of the mother, if it is the intent that the fetus be delivered in a manner to best assure its survival, it is technically not an "induced termination of pregnancy" as currently defined in Code AND in the proposed Code section § 16-2M-3. WV Code §16-5-1, definition 10, states that: "Induced termination of pregnancy" means the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant, and which does not result in live birth. The definition excludes management of prolonged retention of products of conception following fetal death. Furthermore, the proposed section states, "§16-2M-3. Definitions. For purposes of this article: "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device; (1) To intentionally kill the unborn child of a woman known to be pregnant; or (2) To intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than: (A) After viability to produce a live birth and preserve the life and health of the child born alive; or (B) To remove a dead unborn child;" So, if it is the intent to try to deliver a live born fetus, and the fetus IS born alive, then it is a live birth under Code definitions for live birth. It the live born fetus then dies, a death certificate is then filed. Also, if it is the intent to deliver a fetus alive, but the fetus is not born live, then it is a fetal death. If the fetus weighs at least 350 grams, it is a reportable as a fetal death under WV Code. Thus, under current Vital Statistics Code sections, neither of those occurrences (born live or born dead) are induced terminations of pregnancy because the intent was that the fetuses be delivered alive - thus, not reportable under current WV Code as an abortion which is strictly in-line with national reporting standards for those events.
    The hardest part about implementing the proposed language is implementing it in a manner that does not interfere with the national standard reporting of ITOPs to the CDC for inclusion in national statistics but yet still meets the intent of the bill. Other issues: 1) the introduction of the term "viability" into the proposed Code definition. "Viability" is often a physician's best medical opinion and, 2) given the explanation above, it is likely that what would have been considered abortions will now be infant and fetal deaths, driving up those rates in an artificial manner and, 3) the concept of "post-fertilization age" is an imprecise, 4) the proposed definition of Abortion would include ectopic pregnancies and "selected reduction" which is more common in women using fertility drugs. Note: from both statistical & practical considerations, this would likely be much easier to implement at the beginning of a calendar year as long as sufficient development and implementation lead-time were made available.
    On page 15, section §16-2M-9(a) of this bill creates a special revenue fund known as the West Virginia Pain-Capable Unborn Child Protection Act Litigation Fund for the purpose of providing funds to pay for any costs and expenses incurred by the State Attorney General in relation to actions surrounding defense of this law. Section §16-2M-9(b) requires the Department of Health and Human Resources to maintain this fund. The Department estimates that placing responsibility for maintenance of the Fund within the Department, while providing funds to the State Attorney General could prove difficult from a logistics viewpoint.

    Person submitting Fiscal Note: Karen L. Bowling
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