COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 533
(By Senators Prezioso, Unger, Bailey, Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Kessler, Love, McKenzie, Minard,
Minear, Oliverio, Plymale, Sharpe, Sprouse, Tomblin, Mr.
President, Weeks, White and Yoder)
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[Originating in the Committee on Health and Human Resources;
reported March 24, 2005.]
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A BILL 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 the Code of West Virginia,
1931, as amended, all relating to parental notification
requirements for abortions performed on unemancipated minors;
defining terms; providing for a waiver; requiring notice to
minor of right of petition to family court; reporting
requirements; providing remedies; specifying when notice not
required; severability; and providing penalties.
Be it enacted by the Legislature of West Virginia:
That §16-2F-2, §16-2F-3, §16-2F-4, §16-2F-5, §16-2F-6,
§16-2F-8 and §16-2F-9 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-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
intentionally to terminate the pregnancy of a female known to be
pregnant with knowledge that the termination with those means will,
with reasonable likelihood, cause the expulsion of an 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.
(5) "abortion" means the use of any instrument, medicine, drug
or any other substance or device with intent to terminate the
pregnancy of a female known to be pregnant and with intent to cause the expulsion of a 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.
(4) "Medical Emergency" means that condition which, on the
basis of the physician's clinical judgment, so complicates the
medical condition of a pregnant female as to necessitate the
immediate abortion of her pregnancy to avert her death or for which
a delay will create a serious health risk.
(1) (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.
(2) (7) "Unemancipated minor" means any minor who is neither
married nor who has not been emancipated 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 demonstrating that the female is not an unemancipated minor or
proof that the minor is emancipated; or
(2) A 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 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
; 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 subsection
(a)(1) 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 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 a copy
of all affidavit, proof of age and of any court order provided for
in this section for seven years following the date of the abortion.
§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. A parent may receive:
(A) Actual notice orally at the facility and may waive the
forty-eight hour notice period: Provided, That this waiver shall be
construed to waive any period mandated by section two, article two-
i, chapter sixteen of this code; or
(B) Constructive notice in writing to the parent's last known
address, restricted delivery, return receipt requested. The 48-
hour time period for written notice shall commence to run at 12
o'clock noon on the next day on which regular mail delivery takes
place, subsequent to the day of the mailing.
(2) Prior to performing an abortion, a physician, or his or
her designee, shall obtain from the parent proof of identification
and a signed form certifying they have received notice of the
intent of the physician to perform an abortion as required by this
section
. This information shall be included in the minor's medical
records.
(3) The physician performing the abortion or his or her
designee, shall execute an affidavit certifying the information
presented by the minor and her parent was sufficient evidence of
their identity. This affidavit shall be included in the minor's
medical records.
(b) Notice to the parent is not required if:
(1) A 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 the abortion concludes in his or
her clinical judgment, 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) 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.
§16-2F-5. Petition to 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) A family court judge
of the county in which the minor
resides or in which the abortion is to be performed
may hear a
petition or motion filed by an unemancipated minor who elects not
to allow notification of her parent. The judge may
authorize a
physician to perform the abortion without notice to the parent if
the judge determines 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 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 the 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 in family court under this section are
confidential and shall be given such precedence over other pending
matters so that the family court judge may reach a decision
promptly and without delay so as to serve the best interests of the
pregnant minor. A family court 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 open to inspection or copy by
anyone unless upon court order for good cause shown.
§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 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,
if such notice was waived; and
(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.
(8) The number of females whose parent was notified pursuant
to section four of this article and the manner in which they were
notified;
(9) The number of females who, to the best of the reporting
physician's information and belief, went on to obtain the abortion;
(10) 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;
and
(11) The number of abortions performed upon a female by the
physician after receiving judicial authorization to do so without
parental notification.
(b) 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.
(c) 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, of 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 form 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.
(d) Reports that are not submitted within 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
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.
(e) 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.
(f) If the Department of Health and Human Resources fails to issue the public report required by subsection (e) 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.
(g) 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) or subsection (c) or
(e) 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 (e) 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.
(1) 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.
(2) 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.
(3) 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 any subsequent costs of medical or
psychiatric treatment a minor might require because of
complications resulting from the abortion.
(4) It is not a defense to a claim brought pursuant to this
section that the minor gave informed and voluntary consent.
(5) An unemancipated minor does not have capacity to consent
to any action that violates this article.
§16-2F-9. Severability.
(1) 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.
(2)
If any provision of this article or the application
thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of
this article, and to this end the provisions of this article are
declared to be severable.
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(NOTE: The purpose of this bill relates to parental
involvement in the minor's decision to obtain an abortion. The bill
requires abortion providers to obtain proof of age prior to the
performance of an abortion on a pregnant woman. The bill provides
for a judicial bypass. Abortion providers must provide actual or
constructive notice to parents of minors, and maintain
certifications of such notice as well as parent's proof of
identification for a minimum time period in the medical file of the
minor. The bill creates civil liability, criminal penalties, and
mandates certain reporting requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)