SB352 HFA Summers and Burkhammer 3-8 #1
CR 3338
Delegates Summers and Burkhammer moved to amend the bill on page 1, line 1, by striking everything after the enacting clause and inserting the following:
The definitions set forth in this section are controlling for purposes of this article and of this code, irrespective of terms used in medical coding, notations, or billing documents. For purposes of this article:
“Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a patient known to be pregnant and with intent to cause the death and expulsion or removal of an embryo or a fetus. This term does not include the terms “intrauterine fetal demise” or “stillbirth” or “miscarriage” as defined in this section.
"Attempt to perform or induce an abortion" means an act or the omission of an act that, under the circumstances as the person so acting or omitting to act believes them to be, constitutes a substantial step in a course of conduct intended to culminate in an abortion.
“Born alive” means the complete expulsion or extraction of the fetus, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
“Commissioner” means the Commissioner of the Bureau. for Public Health of the West Virginia Department of Health and Human Resources.
"Embryo" means the developing human from the time of fertilization until the end of the eighth week of gestation.
"Fertilization" means the fusion of a human spermatozoon with a human ovum.
"Fetus" means the developing human in the postembryonic period from nine weeks after fertilization until birth.
“Licensed medical professional” means a person licensed under §30-3-1 et seq., or §30-14-1 et seq., of this code.
"Implantation" means when a fertilized egg has attached to the lining of the wall of the uterus.
"Intrauterine fetal demise” or “stillbirth” means the unintended or spontaneous loss of a fetus after the 19th week of pregnancy.
“Miscarriage" means the unintended or spontaneous loss of an embryo or a fetus before the 20th week of pregnancy. This term includes the medical terms “spontaneous abortion,” “missed abortion,” and “incomplete abortion”.
"Nonviable" means an embryo or a fetus has a lethal anomaly which renders it incompatible with life outside of the uterus.
"Partial-birth abortion" means an abortion performed on a live fetus after partial vaginal delivery.
"Reasonable medical judgment" means a medical judgment that would be made by a licensed medical professional who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
“Unemancipated minor” means a person younger than 18 years of age who is not, or has not been, married or judicially emancipated.
(a) An abortion may not be performed or induced, or be attempted to be performed or induced, unless in the reasonable medical judgment of a licensed medical professional:
(1) The embryo or fetus is nonviable:
(2) The pregnancy is ectopic; or
(3) A medical emergency exists.
(b) The prohibition set forth in subsection (a) of this section shall not apply to an adult within the first eight weeks of pregnancy if the pregnancy is the result of sexual assault, as defined in §61-8B-1 et seq. of this code, or incest, as defined in §61-8-12 of this code, and at least 48 hours prior to the abortion the patient has reported the sexual assault or incest to a law- enforcement agency having jurisdiction to investigate the complaint and provided the report to the licensed medical professional performing the abortion.
(c) The prohibition set forth in subsection (a) of this section shall not apply to a minor or an incompetent or incapacitated adult within the first 14 weeks of pregnancy if the pregnancy is the result of sexual assault, as defined in §61-8B-1 et seq. of this code, or incest, as defined in §61-8-12 of this code, and at least 48 hours prior to the abortion the patient has:
(1) Made a report of the sexual assault or incest to law enforcement having jurisdiction to investigate the complaint; or
(2) The patient has obtained medical treatment for the sexual assault or incest, or any injury related to the sexual assault or incest, from a licensed medical professional or in a hospital, as defined in §16-5B-1 §16B-3-1 of this code, which is licensed by the Office of Health Facility Licensure and Certification of the West Virginia Department of Health and Human Resources: Provided, That the licensed medical professional or hospital, as defined in §16-5B-1 §16B-3-1 of this code, which is licensed by the Office of Health Facility Licensure and Certification of the West Virginia Department of Health and Human Resources, and which performed or provided such medical treatment, may not perform or provide the abortion arising from such sexual assault or incest.
(d) In all cases where a report of sexual assault or incest against a minor is made pursuant this subsection (c), the agency or person to whom the report is made shall report the sexual assault or incest to the Child Abuse and Neglect Investigations Unit of the West Virginia State Police within 48 hours.
(e) An abortion performed pursuant to this section may not use the partial birth abortion procedure.
(f) A surgical abortion performed or induced, or attempted to be performed or induced, pursuant to this section, shall be in a hospital, as defined in §16-5B-1 §16B-3-1 of this code, which is licensed by the Office of Health Facility Licensure and Certification. of the West Virginia Department of Health and Human Resources.
(g) An abortion performed or induced, or attempted to be performed or induced, shall be performed by a licensed medical professional who has West Virginia hospital privileges.
(h) An abortion performed or induced, or attempted to be performed or induced pursuant to this section, except in the case of a medical emergency, requires the voluntary and informed consent of the patient. Consent to an abortion is voluntary and informed, when the licensed medical professional, at least the day prior to the performance or induction of an abortion, which could be included within the 48 hour requirements pursuant to subsection (b) or subsection (c), which:
(1) Informs the patient of the medical risks associated with the particular abortion procedure to be employed, including, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility;
(2) In the case of a chemical abortion, informs the patient of the risks associated with any abortion medication prescribed to the patient and also information on reversal.
(3) Informs the patient of the medical risks associated with carrying her child to term;
(4) Informs the patient of the opportunity to view an ultrasound;
(5) Informs the patient of the developmental stage the embryo or fetus; and
(6) Informs the patient through printed material relevant to the case and provides information to the Department of Health's web site which contains the following information:
(A) Geographically indexed mental health resources such as grief counseling; 988 crisis line; and rape information and services contacts;
(B) Information regarding perinatal hospice and palliative care including a directory of perinatal hospice and palliative care providers;
(C) Educational material on embryonic and fetal development, including probable anatomical and physiological characteristics of the embryo or fetus at gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus's survival and pictures or drawings representing the development of an embryo or fetus. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the embryo or fetus at the various stages development. Hyperlinks to websites where information on fetal anomalies and care of disabled children shall be obtained;
(D) Geographically indexed pregnancy help organizations eligible to receive funds pursuant to §16-66-1 et seq. of this code; and adoption agencies; and
(E) A directory of abortion pill reversal providers with a hyperlink and telephone number for credible national, state, or local organizations engaged in providing abortion pill reversal and/or referring for abortion pill reversal.
(a) Whenever a licensed medical professional performs or induces, or attempts to perform or induce an abortion, and the child is born alive, the licensed medical professional shall:
(1) Exercise the same degree of reasonable medical judgment to preserve the life and health of the child in the same manner as the licensed medical professional would render to any child alive at birth of the same gestational age;
(2) Ensure that the child is immediately transported and admitted to an appropriate medical facility.
(b) Any licensed medical professional who knowingly and willfully violates subsection (a) of this section shall be considered to have breached the standard of care owed to patients and is subject to discipline from the appropriate licensure board for such conduct, including, but not limited to, loss of professional license to practice.
(c) Any person, not subject to subsection (a) of this section, who knowingly and willfully violates subsection (a) of this section is guilty of the unauthorized practice of medicine in violation of §30-3-13 of this code and, upon conviction thereof, is subject to the penalties contained in that section. Provided, That the provisions of this subsection (c) enacted during the third extraordinary session of the Legislature, 2022, shall be effective 90 days from passage.
(d) In addition to the penalties referenced in this section, a patient may seek any remedy otherwise available to the patient by applicable law.
(e) This section shall not be construed to subject any patient upon whom an abortion is performed or induced, or attempted to be performed or induced, to a criminal penalty for any violation of this section as a principal, accessory or accomplice, conspirator, or aider and abettor.
Adopted
Rejected