COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 544
(By Senators Prezioso, Helmick, Mr. Tomblin, Mr. President,
Jenkins, Sypolt, Oliverio, Facemyer, Love, Kessler, Sprouse,
Minard, Fanning, Bowman, Hunter, Boley, Unger and Plymale)
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[Originating in the Committee on the Judiciary;
reported February 26, 2007.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §16-2F-1a; and to
amend and reenact §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5,
§16-2F-6, §16-2F-8 and §16-2F-9 of said code, all relating to
parental notification requirements for abortions performed on
unemancipated minors; providing that the circuit court has
jurisdiction over the provisions of the article; defining
terms; providing for a waiver; requiring notice to minors of
a right to petition the court; reporting and record retention
requirements; specifying when notice is not required;
providing penalties; and providing a severability clause.
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 §16-2F-1a; and that
§16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and
§16-2F-9 of said code be amended and reenacted, all to read as
follows:
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON
UNEMANCIPATED MINORS.
§16-2F-1a. Jurisdiction.
The circuit courts shall have jurisdiction over matters
contained in this article.
§16-2F-2. Definitions.
For purposes of this article, unless the context in which used
clearly requires otherwise:
(1) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device with
intent to intentionally terminate the pregnancy of a female known
to be pregnant and with intent to knowledge that the termination
with those means will, with reasonable likelihood, cause the
expulsion of a any embryo or fetus other than by live birth:
Provided, That nothing in this article shall be construed so as to
prevent the prescription, sale or transfer of intrauterine
contraceptive devices or other contraceptive devices or other
generally medically accepted contraceptive devices, instruments,
medicines or drugs for a female who is not known to be pregnant and
for whom such contraceptive devices, instruments, medicines or
drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the
termination of a known pregnancy.
(3) (2) "Actual notice" means the giving of notice directly in
person. or by telephone
(4) (3) "Constructive notice" means the giving of notice by
certified mail to the last known address of the parents or legal
guardian, return receipt requested.
(4) "Medical emergency" means any condition that a reasonably
prudent physician with knowledge of the case and treatment
possibilities with respect to the medical conditions involved would
determine that a condition exists that would so complicate the
medical condition of a pregnant female as to necessitate the
immediate termination of her pregnancy in order to avert her death
or for which delay will create a serious risk of substantial and
irreversible physical impairment of a major bodily function.
(5) "Minor" means any person under the age of eighteen years.
who has not graduated from high school
(6) "Parent" means one parent of the pregnant female, or
guardian or curator if the pregnant female has one.
(7) "Unemancipated minor" means any minor who is neither
married nor who has not been emancipated as pursuant to applicable
federal law or as provided by section twenty-seven, article seven,
chapter forty-nine of this code.
§16-2F-3. Required proof of age prior to performing an abortion.
(a) Except in the case of a medical emergency, a physician may
not perform an abortion on a pregnant female unless:
(1) The physician or his or her designee has obtained proof of
age which a reasonably prudent person would think demonstrates that
the female is eighteen years of age or older or proof which a
reasonable and prudent person would think demonstrates that the
minor is emancipated; or
(2) A circuit court of the county in which the female resides
or in which the abortion is to be performed has entered an order
authorizing a physician to perform the abortion pursuant to a
petition or motion filed by a female who is unable to produce
satisfactory proof demonstrating that she is not a minor or that
she is an emancipated minor and after a finding by the court that
the female is not a minor or that she is an emancipated minor.
This order is not subject to appeal. All hearings are subject to
the procedural requirements of section five of this article; or
(3) The physician has complied with section four of this
article.
(b) If the physician or his or her designee obtains proof of
the age or emancipation of the female as provided in subdivision
(1), subsection (a) of this section, the physician or his or her
designee shall execute and sign for inclusion in the female's
medical record an affidavit stating that, to the best information
and belief, a reasonable and prudent person under similar
circumstances would have relied upon the information presented as
sufficient evidence of the identity of the person seeking the
abortion and that she is not a minor or that she is an emancipated
minor.
(c) To the extent applicable, the physician shall keep in the
female patient's file a copy of all affidavits, proof of age and of
any court order provided for in this section until two years after
the minor reaches the age of majority: Provided, That if the
female presents a government issued photographic identification
showing her to have attained the age of eighteen or older, the
provisions of this subsection shall not apply.
§16-2F-4. Parental notification required for abortions on
unemancipated minors; exceptions.
(a) (1) A physician shall not perform an abortion upon an
unemancipated minor unless notice is given to the parent of the
unemancipated pregnant minor prior to a physician performing an
abortion. Notice shall be given at least forty-eight hours prior
to the performance of the procedure and a copy of the notice shall
be kept in the minor's medical records until two years after she
reaches the age of majority. A parent may receive:
(A) Actual notice and may waive the 48-hour notice period:
Provided, That this waiver shall not be construed to waive any
period mandated by section two, article two-i of this chapter; or
(B) Constructive notice sent via the United States post office
to the parent's last known address, restricted delivery, return
receipt requested. The information concerning the address of the
parent must be such which a reasonable and prudent person, under
similar circumstances, would have relied upon as sufficient
evidence that the parent resides at that address. The 48-hour time period for written notice shall commence to run at twelve o'clock
noon on the next day on which regular mail delivery takes place,
subsequent to the date of the mailing.
(2) Prior to performing an abortion, a physician, or his or
her designee, shall obtain from the parent to whom actual notice is
given, proof of identification which a reasonable and prudent
person, under similar circumstances, would have relied upon as
sufficient evidence that the person is the parent of the minor
female. A copy of this information or specific details concerning
the proof provided shall be included in the minor's medical records
for two years after the minor reaches the age of majority.
(3) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
presented by the female of her age or emancipation was such which
a reasonable and prudent person, under similar circumstances would
have relied upon as sufficient evidence of her age or emancipation.
This affidavit shall be included in the female's medical records
for a period of two years after the minor's eighteenth birthday:
Provided, That if the female has presented a government-issued
photograph identification showing her to have attained the age of
eighteen or older, the provisions of this subdivision shall not
apply.
(4) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
presented by the parent receiving actual notice was sufficient
evidence of his or her identity which a reasonable and prudent person, under similar circumstances, would have relied upon as
sufficient evidence that the person is the parent of the minor.
This affidavit shall be included in the minor' medical records for
two years after the minor reaches the age of majority.
(5) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
provided by the minor concerning the last known address of the
parent for constructive notice was such which a reasonable and
prudent person, under similar circumstances, would have relied upon
as sufficient evidence of the parent's last known address. This
affidavit shall be included in the minor's medical records and kept
for two years after the minor reaches the age of majority.
(b) Notice to the parent is not required if:
(1) A circuit court judge of the county in which the
unemancipated minor resides or where the abortion is to be
performed issues an order authorizing the unemancipated minor to
consent to the abortion as provided by section five of this
article; or
(2) The physician performing an abortion concludes a medical
emergency exists. The physician is required to certify to the
Department of Health and Human Resources, on a form provided by the
department, the medical justification supporting the physician's
judgment that a medical emergency existed. A copy of this form
shall be maintained in the minor's medical records.
(c) The physician shall keep a copy of the medical records of
a minor for two years past the minor's age of majority.
(d) Unless the unemancipated minor gives notice of her intent
to seek a judicial waiver, the attending physician or the
physician's agent shall verbally inform the parent within
twenty-four hours after the performance of a medical emergency
abortion, that a medical emergency abortion was performed on the
unemancipated minor and shall also send a written notice, in the
manner described in paragraph (B), subdivision (1), subsection (a)
of this section, of the performed medical emergency abortion. If
the unemancipated minor, upon whom a medical emergency abortion was
performed, elects not to allow the notification of her parent, any
judge of a circuit court of the county in which the unemancipated
minor resides or where the abortion was performed shall, upon
petition or motion and after an appropriate hearing, authorize the
waiving of the required notice of the performed abortion if the
judge determines, by clear and convincing evidence, that the
unemancipated minor is mature and capable of determining whether
notification should be given or that the waiver would be in the
unemancipated minor's best interest.
(e) The Department of Health and Human Resources may propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code to propose all
forms, affidavits and certifications required by this section.
(f) The Supreme Court of Appeals shall promulgate a form
petition for the use of unemancipated minors seeking relief
pursuant to the provisions of section five of this article.
§16-2F-5. Petition to circuit court; review by circuit court.
(a) If a circuit court judge of the county in which the minor
resides or in which the abortion is to be performed hears a
petition or motion filed by an unemancipated minor who elects not
to allow notification of her parent, then the judge shall authorize
a physician to perform the abortion without notice to the parent if
the judge determines, by clear and convincing evidence, that the
pregnant minor is mature and capable of giving informed consent to
the abortion. If the judge determines that the pregnant minor is
not mature, or if the pregnant minor does not claim to be mature,
the judge shall determine, by clear and convincing evidence,
whether the performance of an abortion upon her without
notification of her parent would be in her best interest. The
judge shall enter an order authorizing the physician to perform the
abortion without notification if the judge concludes that the
pregnant minor's best interests would be served. This
authorization is not subject to appeal. All hearings are subject
to the procedural requirements of section five of this article.
(b) A minor may file the petition or motion on her own behalf
and the court may appoint a guardian ad litem for her. The court
shall, however, advise her that she has a right to court-appointed
counsel and shall, upon her request, provide her with such counsel.
The attorney shall be paid for his or her services in accordance
with the provisions of article twenty-one, chapter twenty-nine of
this code.
(c) Proceedings under this section are confidential and shall
be given such precedence over other pending matters so that the judge may reach a decision promptly and without delay so as to
serve the best interests of the pregnant minor. In no event shall
the proceeding be later than the third judicial day after the day
that the complaint is filed. A judge who conducts proceedings
under this section shall make written factual findings and legal
conclusions supporting the decision and shall order a record of the
evidence to be maintained including the judge's own findings and
conclusions. All records of proceedings in these proceedings shall
be kept in the office of the clerk of the circuit court in a sealed
file and shall be kept in a locked or sealed cabinet, vault or
other container and shall not be opened to inspection or copy by
anyone unless upon court order for good cause shown.
§16-2F-6. Reporting requirements for physicians.
(a) Any physician performing an abortion upon an unemancipated
minor shall provide the Department of Health and Human Resources a
written report of the procedure within thirty days after having
performed the abortion. Nothing in the report shall personally
identify any individual female. The Department of Health and Human
Resources shall provide reporting forms for this purpose to all
physicians and public health facilities required to be licensed
pursuant to article five-b of this chapter. The following
information, in addition to any other information which may be
required by the Department of Health and Human Resources, regarding
the minor receiving the abortion shall be included in such
reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births;
(5) Previous abortions;
(6) Complications, if any, of the abortion being reported; and
(7) Reason for waiver of notification of the minor's parent or
guardian, if such notice was waived; and
(8) (7) The city and county in which the abortion was
performed.
Any such report shall not contain the name, address or other
information by which the minor receiving the abortion may be
identified.
(b) Any physician performing abortions upon unemancipated
minors shall provide the Department of Health and Human Resources
a written report containing the information listed below. Nothing
in the report shall personally identify any individual female. The
following information, in addition to any other information which
may be required by the Department of Health and Human Resources,
regarding the minor receiving the abortion shall be included in
such reporting form:
(1) The number of females whose parent was notified pursuant
to section four of this article and the manner in which they were
notified;
(2) The number of females who, to the best of the reporting
physician's information and belief, went on to obtain the abortion;
(3) The number of females upon whom the physician performed an abortion without providing the notice described in section four of
this article, including the number who were emancipated minors;
(4) The number of abortions performed upon a female by the
physician after receiving judicial authorization to do so without
parental notification; and
(5) The number of abortions performed for medical emergency
reasons.
(c) The Department of Health and Human Resources may propose
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to develop reporting
forms as described in this section. The rules shall ensure that
copies of the reporting forms, described in this section, together
with a reprint of this article, are provided:
(1) By the first day of December of every year, other than the
calendar year in which forms are distributed in accordance with
this section, to all physicians licensed to practice in this state;
and
(2) To each physician who subsequently becomes newly licensed
to practice in this state at the same time as official notification
to that physician that the physician is so licensed.
(d) By the twenty-eighth day of February of each year
following a calendar year in any part of which this article was in
effect, each physician or his or her designee who provided the
notice described in section four of this article and any physician
who knowingly performed an abortion upon a pregnant minor or upon
a female for whom a guardian or curator had been appointed pursuant to applicable federal law or as provided by sections three and
four, article ten, chapter forty-four of this code because of a
finding of incompetency of the pregnant minor during the previous
calendar year shall submit to the Department of Health and Human
Resources a copy of the forms described in this section with the
requested data entered accurately and completely. The information
included in the reports shall not personally identify any
individual female.
(e) Reports that are not submitted within thirty days
following the due date are subject to a late fee of five hundred
dollars for the first month and one thousand dollars for each
additional thirty-day period or portion of a thirty-day period they
are overdue. Any physician required to report in accordance with
this section who has not submitted a report, or has submitted only
an incomplete report, more than one year following the due date,
may, in an action brought by the Department of Health and Human
Resources, be directed by a circuit court of the county in which
the physician resides or practices to submit a complete report
within a period stated by court order or be subject to sanctions
for civil contempt.
(f) By the thirtieth day of June of each year, the Department
of Health and Human Resources shall issue a public report providing
statistics for the previous calendar year compiled from all of the
reports covering that year submitted in accordance with this
article. The report shall also include statistics which shall be
obtained from the Supreme Court of Appeals giving the total number of petitions or motions filed under subsection (a), section five of
this article, including the number in which the court appointed a
guardian ad litem, the number in which the court appointed counsel,
the number in which the circuit court judge issued an order
authorizing an abortion without notification, the number in which
the circuit court judge denied such an order, the number of denials
from which an appeal was filed, the number of appeals that resulted
in the denials being affirmed and the number of appeals that
resulted in reversals of denials. Each report shall provide the
statistics from late or corrected reports for all previous calendar
years. The information included in the public reports shall not
personally identify any individual female.
(g) If the Department of Health and Human Resources fails to
issue the public report required by subsection (f) of this section,
any group of ten or more citizens of this state may seek an
injunction in the circuit court of Kanawha County against the
Secretary of the Department of Health and Human Resources requiring
that a complete report be issued within a period stated by court
order.
(h) The Department of Health and Human Resources may propose
rules for legislative approval pursuant to section five, article
three, chapter twenty-nine-a of this code to alter the dates
established by subdivision (1), subsection (b) of this section or
subsection (c) or (f) of this section or consolidate the forms or
reports to achieve administrative convenience or fiscal savings or
to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at
least once every year and the report described in subsection (f) of
this section is issued at least once every year.
§16-2F-8. Penalties.
(a) A person who uses a false governmental record or makes a
false representation or statement in order to obtain an abortion
for a minor or who signs an affidavit or certification required by
section three or four of this article that is false is guilty of
false swearing as defined in section two, article five, chapter
sixty-one of this code.
(b) Any person who uses a false governmental record or makes
a false representation or statement in order to obtain an abortion
for a minor or who signs an affidavit or certification required by
section three or four of this article that is false is civilly
liable to the person or persons entitled to receive parental notice
for pain and suffering and any subsequent costs of medical or
psychiatric treatment a minor might require because of
complications resulting from the abortion.
(c) Any person who knowingly performs an abortion upon an
unemancipated minor in violation of this article or who knowingly
fails to conform to any requirement of this article shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than one thousand dollars
or confined in jail not more than thirty days, or both.
(d) It is not a defense to a claim brought pursuant to this
section that the minor gave informed and voluntary consent.
(e) An unemancipated minor does not have capacity to consent
to any action that violates this article.
§16-2F-9. Severability.
If any one or more provision, section, subsection, sentence,
clause, phrase or word of this article or the application thereof
to any person or circumstance is found to be unconstitutional, the
same is hereby declared to be severable and the balance of this
article shall remain effective notwithstanding such
unconstitutionality. The Legislature hereby declares that it would
have passed this article, and each provision, section, subsection,
sentence, clause, phrase or word thereof, irrespective of the fact
any one or more provision, section, subsection, sentence, clause,
phrase or word be declared unconstitutional.
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(NOTE: The purpose of this bill is relative to parental
involvement in the minor's decision to obtain an abortion. The
bill requires physicians to obtain proof of age prior to the
performance of an abortion on a pregnant woman. The bill provides
for a constructive notice to parents of minors, and maintains
information for a specified period in the minor's medical file.
The bill creates penalties. Finally, the bill mandates specific
reporting requirements.
§16-2F-3, §16-2F-4, §16-2F-8 and §16-2F-9 have been
substantially rewritten; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)