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Key: Green = existing Code. Red = new code to be enacted
ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 519
(By Senators Prezioso, Unger, Fanning, Tomblin, Mr. President,
Love, Kessler, Minard, Harrison, Bowman, Plymale, Jenkins, Yoder,
Guills, Bailey, Chafin, McKenzie, Hunter, Facemyer, Weeks,
Barnes, Edgell, Oliverio, Sharpe, Caruth, Dempsey, Sprouse,
Minear, Boley, Deem, White and Helmick)
____________
[Originating in the Committee on the Judiciary;
reported February 28, 2006.]
__________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §16-2F-1a; and 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 said code, all relating to
parental notification requirements for abortions performed on
unemancipated minors; providing that the circuit and family
court have concurrent jurisdiction over the provisions of the
article; defining terms; providing for a waiver; requiring
notice to minors of a right to petition the court; allowing
for appeal by the unemancipated minor to circuit if matter is initially heard in family court; reporting requirements;
providing remedies; specifying when notice is not required;
providing penalties; and providing a severability clause.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §16-2F-1a; and that
§16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6, §16-2F-8 and
§16-2F-9 of said code be amended and reenacted, all to read as
follows:
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON
UNEMANCIPATED MINORS.
§16-2F-1a. Jurisdiction.
The circuit and family courts shall have concurrent
jurisdiction over matters contained in this article.
§16-2F-2. Definitions.
For purposes of this article, unless the context in which used
clearly requires otherwise:
(1) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device with
intent to intentionally terminate the pregnancy of a female known
to be pregnant, and with intent to knowledge that the termination
with those means will, with reasonable likelihood, cause the
expulsion of a any embryo or 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.
(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.
(4) "Medical emergency" means any condition that a reasonably
prudent physician with knowledge of the case and treatment
possibilities with respect to the medical conditions involved 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 physical impairment of a major bodily function.
(5) "Minor" means any person under the age of eighteen years.
who has not graduated from high school
(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 as 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) No physician may perform an abortion upon an unemancipated
minor unless such physician has given or caused to be given at
least twenty-four hours actual notice to one of the parents or to
the legal guardian of the pregnant minor of his intention to
perform the abortion, or, if the parent or guardian cannot be found
and notified after a reasonable effort to do so, without first
having given at least forty- eight hours constructive notice
computed from the time of mailing to the parent or to the legal
guardian of the minor: Provided, That prior to giving the
notification required by this section, the physician shall advise
the unemancipated minor of the right of petition to the circuit
court for waiver of notification: Provided, however, That any such
notification may be waived by a duly acknowledged writing signed by
a parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the
legal guardian of such pregnant minor, the physician shall refer
such pregnant minor to a counselor or caseworker of any church or
school or of the department of human services or of any other
comparable agency for the purpose of arranging or accompanying such
pregnant minor in consultation with her parents. Such counselor
shall thereafter be authorized to monitor the circumstances and the
continued relationship of and between such minor and her parents.
(c) Parental notification required by subsection (a) of this section may be waived by a physician, other than the physician who
is to perform the abortion, if such other physician finds that the
minor is mature enough to make the abortion decision independently
or that notification would not be in the minor's best interest:
Provided, That such other physician shall not be associated
professionally or financially with the physician proposing to
perform the 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 eighteen years of age or older or proof which a
reasonable and prudent person would think demonstrates that the
minor is emancipated; or
(2) A circuit court or 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
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 subdivision
(1), subsection (a) 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 for 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: Provided,
That if the female presents a government issued photographic
identification showing her to have attained the age of eighteen or
older, the provisions of this subsection shall not apply.
§16-2F-4. Parental notification required for abortions on
unemancipated minors; exceptions; right of petition to family
court.
(a) A minor who objects to such notice being given to her
parent or legal guardian may petition for a waiver of such 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 courts. Such minor may so petition and proceed in her own
right or, at her option, by a next friend.
(b) Such 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 be dismissed nor shall 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
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
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 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 not exceed the
sum of one hundred dollars.
(e) The court shall conduct a hearing upon the petition
without delay, but in no event shall 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 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
refuse 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 court then be in
vacation, and such court or justice if deemed 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 courts be then 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.
(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 48-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 48-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
for at least seven years or until five years after the minor
reaches the age of majority, whichever is longer.
(3) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
presented by the female of her age or emancipation was such which
a reasonable and prudent person, under similar circumstances would
have relied upon as sufficient evidence of her age or emancipation.
This affidavit shall be included in the female's medical records
for at least seven years: Provided, That if the female has
presented a government-issued photograph identification showing her
to have attained the age of eighteen or older, the provisions of
this subdivision shall not apply.
(4) The physician performing the abortion, or his or her designee, shall execute an affidavit certifying the information
presented by the parent receiving actual notice was sufficient
evidence of his or her identity 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.
This affidavit shall be included in the minor' medical records for
at least seven years or until five years after the minor reaches
the age of majority, whichever is longer.
(5) The physician performing the abortion, or his or her
designee, shall execute an affidavit certifying the information
provided by the minor concerning the last known address of the
parent for constructive notice was such which a reasonable and
prudent person, under similar circumstances, would have relied upon
as sufficient evidence of the parent's last known address. This
affidavit shall be included in the minor's medical records and kept
for at least seven years or until five years after the minor
reaches the age of majority, whichever is longer.
(b) Notice to the parent is not required if:
(1) A circuit court or 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 an abortion concludes 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) Unless the unemancipated minor gives notice of her intent
to seek a judicial waiver, the attending physician or the
physician's agent shall verbally inform the parent within
twenty-four hours after the performance of a medical emergency
abortion, that a medical emergency abortion was performed on the
unemancipated minor and shall also send a written notice, in the
manner described in paragraph (B), subdivision (1), subsection (a)
of this section, of the performed medical emergency abortion. If
the unemancipated minor, upon whom a medical emergency abortion was
performed, elects not to allow the notification of her parent, any
judge of a family court of the county in which the unemancipated
minor resides or where the abortion was performed shall, upon
petition or motion and after an appropriate hearing, authorize the
waiving of the required notice of the performed abortion if the
judge determines, by clear and convincing evidence, that the
unemancipated minor is mature and capable of determining whether
notification should be given or that the waiver would be in the
unemancipated minor's best interest.
(e) 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.
(f) The Supreme Court of Appeals shall promulgate a form
petition for the use of unemancipated minors seeking relief
pursuant to the provisions of section five of this article.
§16-2F-5. Petition to circuit or family court; review by circuit
court.
The notification requirements of section three of this article
do not apply where there is an emergency need for an abortion to be
performed if the continuation of the pregnancy constitutes an
immediate threat and grave risk to the life or health of the
pregnant minor and the attending physician so certifies in writing
setting forth the nature of such threat or risk and the
consequences which may be attendant to the continuation of the
pregnancy. Such writing shall be maintained with the other medical
records relating to such minor which are maintained by the
physician and the facility at which such abortion is performed.
(a) If a circuit or family court judge of the county in which
the minor resides or in which the abortion is to be performed hears
a petition or motion filed by an unemancipated minor who elects not
to allow notification of her parent, then 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 a 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 under this section are confidential and shall
be given such precedence over other pending matters so that the
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 third judicial day after the day
that the complaint is filed. A 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.
(d) If the action is filed in family court and the proceeding
is not held before a family court judge by the third judicial day
after the complaint is filed, jurisdiction is transferred to the
circuit court and the minor shall have the right to an immediate
expedited confidential hearing to the circuit court.
§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.
(b) Any physician performing abortions upon unemancipated
minors shall provide the Department of Health and Human Resources
a written report containing the information listed below. Nothing
in the report shall personally identify any individual female. 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) The number of females whose parent was notified pursuant
to section four of this article and the manner in which they were
notified;
(2) The number of females who, to the best of the reporting
physician's information and belief, went on to obtain the abortion;
(3) 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;
(4) The number of abortions performed upon a female by the
physician after receiving judicial authorization to do so without
parental notification; and
(5) The number of abortions performed for medical emergency
reasons.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) If the Department of Health and Human Resources fails to
issue the public report required by subsection (f) 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.
(h) 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) of this section or
subsection (c) or (f) 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 (f) of
this section is issued at least once every year.
§16-2F-8. Penalties.
Any person who knowingly performs an abortion upon an
unemancipated minor in violation of this article or who knowingly
fails to conform to any requirement of this article shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than one thousand dollars
or imprisoned in the county jail not more than thirty days, or both
fined and imprisoned.
(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.
The provisions of subsection (cc), section ten, article two,
chapter two of this code shall apply to the provisions of this
article to the same extent as if said subsection were set forth in
extenso herein.
If any one or more provision, 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
unconstitutionality. 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.