Senate Bill No. 72
(By Senators Prezioso, Minard, Love, Sypolt, Jenkins and Hunter)
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[Introduced January 12, 2007; referred to the Committee on Health
and Human Resources; and then to the Committee on the Judiciary.]
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A BILL 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 the Code of West Virginia,
1931, as amended, all relating to parental notification
requirements for abortions performed on unemancipated minors;
defining terms; providing for waiver; requiring notice to
minors of right to petition the family court; reporting
requirements; providing remedies; specifying when notice is
not required; providing penalties; and providing severability
clause.
Be it enacted by the Legislature of West Virginia:
That §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6,
§16-2F-8 and §16-2F-9 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON
UNEMANCIPATED MINORS.
§16-2F-2. Definitions.
For purposes of this article, unless the context in which used
clearly requires otherwise:
(1) "Abortion" means the intentional use or prescription of
any instrument, medicine, drug, or any other substance or device to
terminate the pregnancy of a female known to be pregnant, with
knowledge that the termination with those means will, with
reasonable likelihood, cause the expulsion of any embryo or fetus
other than by live birth.
(1) "Minor" means any person under the age of eighteen years
who has not graduated from high school.
(2) "Un-emancipated 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.
(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.
(5) "Abortion" means the use of any instrument, medicine, drug
or any other substance or device with intent to terminate the
pregnancy of a female known to be pregnant and with intent to cause
the expulsion of a 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.
(4) "Medical emergency" means any condition that a reasonably
prudent physician with knowledge of the case and treatment
possibilities 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 impairment of a major bodily function.
(5) "Minor" means any person under the age of eighteen years.
(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 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 not an unemancipated minor or proof which a
reasonable and prudent person would think demonstrates that the
minor is emancipated; or
(2) A family court judge 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. If the family court judge
denies the authorization that a decision is subject to review by
the circuit court in an in-camera hearing. 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 subsection (a)
subdivision (1) 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 in this section for seven years following
the date of the abortion or until five years after the minor
reaches the age of majority, whichever is longer.
§16-2F-4. Parental notification required for abortions on
unemancipated minors; exceptions; right of petition
to family court.
(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 for at least seven years or
until five years after she reaches the age of majority, whichever
is longer. A parent may receive:
(A) Actual notice and may waive the forty-eight hour notice period:
Provided, That this waiver shall not be construed to waive
any period mandated by section two, article two-i, chapter sixteen
of this code; 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 forty-eight 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.
(3) The physician performing the abortion or his or her
designee, shall execute an affidavit certifying the information
presented by the minor of her parent was sufficient evidence of
their identity. This affidavit shall be included in the minor's medical records.
(b) Notice to the parent is not required if:
(1) A family 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 the abortion concludes in his or
her clinical judgment, 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 five years past the minor's age of majority, or for
seven years following the date of the abortion, whichever is
greater.
(d) 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.
§16-2F-5. Petition to family court; review by circuit court.
(a) A family court judge of the county in which the minor resides or in which the abortion is to be performed may hear a
petition or motion filed by an unemancipated minor who is to be
performed may hear a petition or motion filed by an unemancipated
minor who elects not to allow notification of her parent. 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. If the family court judge denies the authorization that
decision is subject to review by the circuit court in an in-camera
hearing. 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 in family court under this section are
confidential and shall be given such precedence over other pending
matters so that the family court 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
fifth business day after the day that the complaint is filed. A
family court 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;
(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.
(8) The number of females whose parent was notified pursuant
to section four of this article and the manner in which they were
notified;
(9) The number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;
(10) 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;
(11) The number of abortions performed upon a female by the
physician after receiving judicial authorization to do so without
parental notification; and
(b) 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.
(c) 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.
(d) 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.
(e) 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 family court judge issued an order
authorizing an abortion without notification, the number in which
the family 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.
(f) If the Department of Health and Human Resources fails to
issue the public report required by subsection (g) 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.
(g) 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) or subsection (c) or
(g) 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 (g) 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 or recklessly performs an
abortion on a pregnant unemancipated minor in violation of this
article commits a felony and, upon conviction, shall be imprisoned
in a state correctional facility not less than three nor more than
ten years.
(d) Any person who knowingly, recklessly or negligently
performs an abortion on an unemancipated minor in violation of this
article 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.
(e) It is not a defense to a claim brought pursuant to this
section that the minor gave informed and voluntary consent.
(f) 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 provisions, 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
constitutionality. 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.
NOTE: The purpose of this bill relates to parental involvement
in the minor's decision to obtain an abortion. The bill requires
abortion providers to obtain proof of age prior to the performance
of an abortion on a pregnant woman. The bill provides for a
judicial bypass. Abortion providers must provide actual or
constructive notice to parents of minors, and maintain
certifications of such notice as well as parent's proof of
identification for a minimum time period in the medical file of the
minor. The bill creates civil liability, criminal penalties, and
mandates certain reporting requirements while containing a
severability clause.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§16-2F-3, §16-2F-4, §16-2F-5,
§16-2F-8
and §16-2F-9
have been
completely rewritten; therefore, strike-throughs and underscoring
have been omitted.