H. B. 4538
(By Delegate Andes (By Request))
[Introduced February 14, 2008; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §16-2I-7 and §16-2I-9 of the Code of
West Virginia, 1931, as amended, all relating to requiring
physicians and medical institutions to report where abortions
have been performed due to perceived congenital defects of
fetuses; providing a civil penalty for failure to report an
abortion.
Be it enacted by the Legislature of West Virginia:
That §16-2I-7 and §16-2I-9 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.
§16-2I-7. Reporting requirements.
(a) Within ninety days of the effective date of this article,
the Secretary of the Department of Health and Human Resources shall
prepare a reporting form for physicians containing a reprint of
this article and listing:
(1) The number of females to whom the information described in
subsection (a), section two of this article was provided;
(2) The number of females to whom the physician or an agent of
the physician provided the information described in subsection (b),
section two of this article;
(3) The number of females who availed themselves of the
opportunity to obtain a copy of the printed information described
in section three of this article other than on the website;
(4) The number of abortions performed in cases involving
medical emergency;
and
(5) The number of abortions performed in cases not involving
a medical emergency,
and
(6)
The number of abortions performed in cases not involving
medical emergency in which a fetus was perceived as being afflicted
with any significant congenital defect.
(b) The Secretary of the Department of Health and Human
Resources shall ensure that copies of the reporting forms described
in subsection (a) of this section are provided:
(1) Within one hundred twenty days after the effective date of
this article to all physicians licensed to practice in this state;
(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;
and
(3) By the first day of December of each year, other than the
calendar year in which forms are distributed in accordance with
subdivision (1) of this subsection, to all physicians licensed to
practice in this state.
(c) By the twenty-eighth day of February of each year
following a calendar year in any part of which this act was in
effect, each physician who provided, or whose agent provided,
information to one or more females in accordance with section two
of this article during the previous calendar year shall submit to
the Secretary of the Department of Health and Human Resources a
copy of the form described in subsection (a) of this section with
the requested data entered accurately and completely.
(d) Reports that are not submitted by the end of a grace
period of thirty days following the due date are subject to a late
fee of five hundred 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 Secretary of the Department of Health and Human Resources,
be directed by a court of competent jurisdiction to submit a
complete report within a period stated by court order or be subject
to sanctions for civil contempt.
(e) By the first day of August of each year, the Secretary of 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 section for each of the items listed in subsection (a) of
this section. Each report shall also provide the statistics for
all previous calendar years, adjusted to reflect any additional
information from late or corrected reports. The Secretary of the
Department of Health and Human Resources shall prevent any of the
information from being included in the public reports that could
reasonably lead to the identification of any physician who
performed or treated an abortion, or any female who has had an
abortion, in accordance with subsection (a), (b) or (c) of this
section. Any information that could reasonably lead to the
identification of any physician who performed or treated an
abortion, or any female who has had an abortion, in accordance with
subsection (a), (b) or (c) of this section is exempt from
disclosure under the freedom of information act, article one,
chapter twenty-nine-b of this code.
(f) The Secretary of 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 which alter the dates established by subdivision (3),
subsection (b) of this section or subsection (c) or (e) of this
section or consolidate the forms or reports described in this section with other 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 (e) of this section is issued at least once
every year.
§16-2I-9. Civil remedies.
(a) Any person upon whom an abortion has been attempted or
performed without section two of this article having been complied
with may maintain an action against the person who attempted to
perform or did perform the abortion with a knowing or consciously,
subjectively and deliberately formed intention to violate this
article for compensatory damages. If the person upon whom an
abortion has been attempted or performed without section two of
this article having been complied with is a minor, the legal
guardian of the minor may maintain an action against the person who
attempted to perform or did perform the abortion with a knowing or
consciously, subjectively and deliberately formed intention to
violate this article for compensatory damages.
(b) Any physician or medical institution that fails to report
any abortion as required under subsection (a), section seven of
this article, shall be subject to a civil penalty which shall be
equivalent to triple the monetary cost of the abortion performed.
NOTE: The purpose of this bill is to require physicians and
medical institutions to report instances where abortions have been
performed due to perceived congenital defects of fetuses while
providing a civil penalty for failing to report an abortion.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.