West Virginia Legislature
2016 Regular Session
Introduced
House Bill 2371
2015 Carryover
(By Delegates P. Smith, Perry, Hartman, Moye, Rodighiero, Frich, Cowles, Sobonya, J. Nelson, Hamrick and Shott)
[Introduced January 13, 2016; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §16‑2F‑1 and §16‑2F‑4 of the Code of West Virginia, 1931, as amended, all relating to abortions performed on unemancipated minors; stating the state's public policy to protect unborn life as well as the intent of the Legislature to protect the rights of the minor mother; and providing for the appointment of a guardian ad litem to represent the interests of the unborn child during certain proceedings and payment for that service.
Be it enacted by the Legislature of West Virginia:
That §16‑2F‑1 and §16‑2F‑4 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‑1. Legislative findings and intent.
The Legislature finds that immature minors often lack the ability to make fully informed choices that take into account both immediate and long‑range consequences of their actions; that the medical, emotional and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is immature; that in its current abortion policy as expressed in Bellotti v. Baird, 443 U. S. 622 (1979) and H. L. v. Matheson, 450 U. S. 398 (1981), the United States supreme court clearly relies on physician's commitment to consider all factors, physical and otherwise, before performing abortions on minors; that parents ordinarily possess information essential to a physician's exercise of his or her best medical judgment concerning their child; and that parents who are aware that their minor daughter has had an abortion may better ensure that the minor receives adequate medical attention after her abortion. The Legislature further finds that parental consultation regarding abortion is usually desirable and in the best interests of the minor.
The Legislature further finds in accordance with the U. S. Supreme Court's decision in Bellotti v. Baird, 443 U. S. 622 (1979), and H. L. v. Matheson, 450 U. S. 398 (1981), that there exists important and compelling state interests (i) in protecting minors against their own immaturity, (ii) in fostering the family structure and preserving it as a viable social unit, and (iii) in protecting the rights of parents to rear their own children in their own household.
It is, therefore, the intent of the Legislature to further these interests by enacting this parental notice provision.
The Legislature further finds the public policy of the State of West Virginia is to respect life and provide safeguards to protect life in the criminal, health and other laws of the State of West Virginia; that in respecting and protecting life, there is included the unborn life of a child whose life may be subject to termination before birth by abortion and that when the mother of the unborn life is a minor who seeks an abortion through the judicial by‑pass procedure, it is the interest of the state to not only establish and protect the rights of the minor mother, but also to protect the state's public policy to protect unborn life; the protection of these interests is done, in part, by requiring judges to make determinations pursuant to the judicial by‑pass procedure and to require the judges be provided with sufficient evidence and information upon which they may make informed and proper decisions.
West Virginia judges are called upon to make decisions not only respecting the lives of born persons, but also respecting the lives of unborn persons, such as in judicial by‑pass cases for minor abortions; it is always the Legislature's intent to provide guidance to the courts on how life may be best protected.
It is not the intent of the Legislature to place an undue burden on the minor's otherwise legal right to make a decision on whether to obtain an abortion on her own of her unborn child; the Legislature's intent is to provide guidance and assistance to minors who find themselves in the unfortunate position of having to make such decisions and to courts who must act in the place of parents in providing an alternative by‑pass mode for decision making.
'16‑2F‑4. Waiver of notification; petition to circuit court; contents of petition; duties of Attorney General and circuit clerk; confidentiality of proceedings; appointment of counsel and limitation of compensation; findings required to be made by court; petition to supreme court; waiver of certain fees; appointment of guardian ad litem for unborn child.
(a) A minor who objects to such notice
being given to her parent or legal guardian may petition for a waiver of such
the notice to the circuit court of the county in which the minor resides
or in which the abortion is to be performed, or to the judge of either of
such the courts. Such The minor may so petition and
proceed in her own right or, at her option, by a next friend.
(b) Such The petition need
not be made in any specific form and shall be sufficient if it fairly sets
forth the facts and circumstances of the matter, but shall contain the
following information:
(i) The age of the petitioner and her educational level;
(ii) The county and state in which she resides;
(iii) A brief statement of petitioner's reason or reasons for the desired waiver of notification of the parent or guardian of such minor petitioner.
No such petition shall may
be dismissed nor shall may any hearing thereon be refused because
of any defect in the form of the petition.
(c) Upon the effective date of this
article or as soon thereafter as may be, the Attorney General shall prepare
suggested form petitions and accompanying instructions and shall make the same
available to the several clerks of the circuit courts. Such The
clerks shall see that a sufficient number of such suggested form
petitions and instructions are available in the clerk's office for the use of
any person desiring to use the same for the purposes of this section.
(d) All proceedings held pursuant to this
article shall be are confidential and the court shall conduct all
such proceedings in camera. The court shall inform the minor petitioner
of her right to be represented by counsel and that if she is without the requisite
funds to retain the services of an attorney, that the court will appoint an
attorney to represent her interest in the matter. If the minor petitioner
desires the services of an attorney, an attorney shall be appointed to
represent such the minor petitioner, if she advises the court
under oath or affidavit that she is financially unable to retain counsel. Any
attorney appointed to represent such minor petitioner shall be appointed and
paid for her services pursuant to the provisions of article twenty‑one,
chapter twenty‑nine of this code: Provided, That the pay
to any such attorney pursuant to such appointment shall may
not exceed the sum of $100.
(e) The court shall conduct a hearing upon
the petition without delay, but in no event shall may the delay
exceed the next succeeding judicial day, and the court shall render its
decision immediately upon its submission and, in any event, an order reflecting
the findings of fact and conclusions of law reached by the court and its
judgement shall be endorsed by the judge thereof not later than twenty‑four
hours following such submission and shall be forthwith entered of record by the
clerk of the court. All testimony, documents and other evidence presented to
the court, as well as the petition and any orders entered thereon and all
records of whatsoever nature and kind relating to the matter shall be sealed by
the clerk and shall may not be opened to any person except upon
order of the court and, then, only upon good cause being shown therefor. A separate
order book for the purposes of this article shall be maintained by such clerk
and shall likewise be sealed and not open to inspection by any person save upon
order of the court for good cause shown.
(f) Notice as required by section three of this article shall be ordered waived by the court if the court finds either:
(1) That the minor petitioner is mature and well informed sufficiently to make the decision to proceed with the abortion independently and without the notification or involvement of her parent or legal guardian, or
(2) That notification to the person or persons to whom such notification would otherwise be required would not be in the best interest of the minor petitioner.
(g) If or when the circuit court, or the
judge thereof, shall refuses to order the waiver of the notification
required by section three of this article, a copy of the petition and all
orders entered in the matter and all other documents and papers submitted to
the circuit court, may be presented to the Supreme Court of Appeals, or to any
justice thereof if such that court then be in vacation, and such
the court or justice if deemed considered proper, may
thereupon order the waiver of notification otherwise required by section three
of this article. The Supreme Court of Appeals or justice thereof shall hear
and decide the matter without delay and shall enter such orders as such court
or justice may deem appropriate.
(h) If either the circuit court or the
Supreme Court of Appeals, or any judge or justice thereof if either of such
these courts be then is in vacation, shall order a waiver
of the notification required by section three of this article, any physician to
whom a certified copy of said order shall be presented may proceed to
perform the abortion to the same extent as if such physician were in compliance
with the provisions of said section three and, notwithstanding the fact that no
notification is given to either the parent or legal guardian of any such
unemancipated minor, any such physician shall not be subject to the penalty
provisions which may be prescribed by this article for such failure of
notification.
(i) No filing fees may be required of any minor who avails herself of any of the procedures provided by this section.
Notwithstanding any other provision of this code to the contrary, the court may appoint a guardian ad litem for the interests of the unborn child of the petitioner who shall also have the same rights and obligations of participation in the proceeding as given to the Attorney General. The guardian ad litem shall further have the responsibility of assisting and advising the court so the court may make an informed decision and do substantial justice. The guardian ad litem shall be appointed and paid for services pursuant to the provisions of article twenty‑one, chapter twenty‑nine of this code.
NOTE: The purpose of this bill is to state the intent of the Legislature to protect unborn life as well as the state's public policy to protect the rights of the minor mother. The bill also provides for the appointment of a guardian ad litem to represent the interests of the unborn child during certain proceedings.
Strike‑throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.