WEST virginia legislature

2022 regular session

Enrolled

Committee Substitute

for

Committee Substitute

for

Senate Bill 468

By Senators Rucker, Boley, Grady, Karnes, Maynard, Phillips, Roberts, Smith, Stover, Sypolt, Tarr, Woodrum, Clements, Martin, Azinger and Maroney

[Passed March 12, 2022; in effect 90 days from passage]

AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2Q-1, relating to restricting abortion; defining terms; requiring licensed medical professional to provide certain information; requiring Department of Health and Human Resources to make certain information available on website; prohibiting abortion because of a disability; providing exceptions; requiring commissioner to create forms; providing for professional sanctions; and providing criminal penalties.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2Q. Unborn Child with A DISAbiLITy Protection and Education Act.

§16-2Q-1.  Abortion may not be performed because of a disability, except in a medical emergency.

(a) As used in this article:

“Abortion” means the same as that term is defined in §16-2F-2 of this code.

“Attempt to perform or induce an abortion” means the same as that term is defined in §16-2M-2 of this code.

“Because of a disability” means on account of the presence or presumed presence of a disability or diagnosis in a fetus including, but not limited to, chromosomal disorders or morphological malformations occurring as the result of atypical gene expressions.

“Commissioner” means the Commissioner of the Bureau for Public Health.

“Licensed medical professional” means a person licensed under Chapter 30 of this code practicing within his or her scope of practice.

“Medical emergency” means the same as that term is defined in §16-2I-1 of this code.

"Nonmedically viable fetus" means the same as that term is defined in §16-2M-2 of this code.

“Reasonable medical judgment” means the same as that term is defined in §16-2M-2 of this code.

(b) Except in a medical emergency or a nonmedically viable fetus, a licensed medical professional may not perform or attempt to perform or induce an abortion, unless the patient acknowledges that the abortion is not being sought because of a disability.  The licensed medical professional shall document these facts in the patient’s chart and report such with the commissioner.

(c) Except in a medical emergency or a nonmedically viable fetus, a licensed medical professional may not intentionally perform or attempt to perform or induce an abortion of a fetus, if the abortion is being sought because of a disability.

(d) (1) If a licensed medical professional performs or induces an abortion on a fetus, the licensed medical professional shall, within 15 days of the procedure, cause to be filed with the commissioner, on a form supplied by the commissioner, a report containing the following information:

(A) Date the abortion was performed;

(B) Specific method of abortion used;

(C) A statement from the patient confirming that the reason for the abortion was not because of a disability;

(D) Probable health consequences of the abortion to the patient;

(E) Whether a medical emergency existed; and

(F) Whether the fetus was a nonmedically viable fetus.

(2) The licensed medical professional shall sign the form as his or her attestation under oath that the information stated is true and correct to the best of his or her knowledge.

(3) Reports required and submitted under this section may not contain the name of the patient upon whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who obtained or sought to obtain an abortion.

(g) A licensed medical professional that administers, or causes to be administered, a test for a disability or diagnosis to a fetus shall provide the patient with educational information made available by the bureau as provided in this section, within a reasonable time, if the test result confirms the presence of a disability.

(h) The Bureau for Public Health shall make the following available through the bureau's publicly accessible internet website:

(1) Up-to-date, evidence-based information about any in-utero disability or diagnosis that has been peer reviewed by medical experts and any national disability rights organizations. The information provided shall include the following:

(A) Physical, developmental, educational, and psychosocial outcomes;

(B) Life expectancy;

(C) Clinical course;

(D) Intellectual and functional development;

(E) Treatment options; and

(F) Any other information the bureau deems necessary;

(2) Contact information regarding first call programs and support services, including the following:

(A) Information hotlines specific to any in-utero fetal disabilities or conditions;

(B) Relevant resource centers or clearinghouses;

(C) Information about adoption specific to disabilities;

(D) National and local disability rights organizations; and

(E) Education and support programs.

(i)The information provided in accordance with this section shall conform to the applicable standard or standards provided in the Enhanced National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care as adopted by the United States Department of Health and Human Services and published in the Federal Register on September 24, 2013.

(j) A licensed medical professional who intentionally or recklessly performs or induces an abortion in violation of this section is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to a patient, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(k) A person, not subject to subsection (f) of this section, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of §30-3-13 of this code, and upon conviction, subject to the penalties contained in that section.

(l) A penalty may not be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.