Senate Bill No. 170
(By Senators Kessler, Prezioso, Ross, Minard, Sharpe,
Unger, Plymale, Weeks, Oliverio, Boley, Facemyer,
Love, Bailey, Minear, Harrison, McKenzie, Sprouse,
Bowman, Edgell, Deem, Guills, Dempsey, Helmick, Hunter,
Fanning and Smith)
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[Introduced January 17, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-i, relating to
creating the "Women's Right to Know Act"; defining certain
terms; requiring informed consent for an abortion to be
performed; exception for a medical emergency; requiring the
department of health and human resources to publish
information and develop a website on alternatives to abortion;
requiring physicians to report abortion statistics; providing
criminal penalties for violations of the act; providing civil
remedies; privacy in court proceedings; and providing a
separate severability clause.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article two-i, to read as
follows:
ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.
§16-2I-1. Short title.
This article shall be known and may be cited as the "Women's
Right to Know Act".
§16-2I-2.
Definitions.
As used in this article, the term:
(a) "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 an intention other than to increase the probability
of a live birth, to preserve the life or health of the child after
live birth, or to remove a dead fetus.
(b) "Attempt to perform an abortion" means an act, or an
omission of a statutorily required act, that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance of an abortion in West Virginia in violation of this
article.
(c) "Medical emergency" means any condition which, on the
basis of the physician's good faith 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 serious risk of substantial
and irreversible impairment of a major bodily function.
(d) "Physician" means any medical doctor or osteopath licensed
to practice medicine in this state.
(e) "Probable gestational age of the unborn child" means what,
in the judgment of the physician, will with reasonable probability
be the gestational age of the unborn child at the time the abortion
is planned to be performed.
(f) "Stable internet website" means a website that, to the
extent reasonably practicable, is safeguarded from having its
content altered other than by the department of health and human
resources.
§16-2I-3. Informed consent.
No abortion may be performed in this state except with the
voluntary and informed consent of the female upon whom the abortion
is to be performed. Except in the case of a medical emergency,
consent to an abortion is voluntary and informed if and only if:
(a)
Information which must be provided by physician. -- The
female is told the following, by telephone or in person, by the
physician who is to perform the abortion or by a referring
physician, at least twenty-four hours before the abortion:
(1) The name of the physician who will perform the abortion;
(2) The particular medical risks associated with the particular abortion procedure to be employed including, when
medically accurate, the risks of infection, hemorrhage, breast
cancer, danger to subsequent pregnancies and infertility;
(3) The probable gestational age of the unborn child at the
time the abortion is to be performed; and
(4) The medical risks associated with carrying her child to
term.
The information required by this subsection may be provided by
telephone without conducting a physical examination or tests of the
patient, in which case the information required to be provided may
be based on facts supplied the physician by the female and whatever
other relevant information is reasonably available to the
physician. It may not be provided by a tape recording, but must be
provided during a consultation in which the physician is able to
ask questions of the female and the female is able to ask questions
of the physician.
If a physical examination, tests, or the availability of other
information to the physician subsequently indicates, in the medical
judgment of the physician, a revision of the information previously
supplied to the patient, that revised information may be
communicated to the patient at any time prior to the performance of
the abortion.
Nothing in this section may be construed to preclude provision
of required information in a language understood by the patient through a translator.
(b)
Information which may be provided by agent of physician.
-- The female is informed, by telephone or in person, by the
physician who is to perform the abortion, by a referring physician,
or by an agent of either physician at least twenty-four hours
before the abortion:
(1) That medical assistance benefits may be available for
prenatal care, childbirth, and neonatal care;
(2) That the father is liable to assist in the support of her
child, even in instances in which the father has offered to pay for
the abortion; and
(3) That she has the right to review the printed materials
described in section four of this article, that these materials are
available on a state-sponsored website, and the website address.
The physician or the physician's agent shall orally inform the
female that the materials have been provided by the state of West
Virginia and that they describe the unborn child and list agencies
which offer alternatives to abortion. If the female chooses to
view the materials other than on the website, then they shall
either be given to her at least twenty-four hours before the
abortion, or mailed to her at least seventy-two hours before the
abortion by certified mail, restricted delivery to addressee, which
means the postal employee can only deliver the mail to the
addressee.
The information required by this subsection may be provided by
a tape recording if provision is made to record or otherwise
register specifically whether the female does or does not choose to
have the printed materials given or mailed to her.
(c)
Certification required. -- The female shall certify in
writing, prior to the abortion, that the information described in
subsections (a) and (b) of this section, has been given to her, and
that she has been informed of her opportunity to review the
information referred to in subdivision (3), subsection (b) of this
section.
(d)
Copy of certification. -- Prior to performing the
abortion, the physician who is to perform the abortion or the
physician's agent shall receive a copy of the written certification
prescribed by subsection (c) of this section.
§16-2I-4. Printed information.
(a)
Alternatives to abortion and unborn development data. --
Within ninety days after this article is enacted, the department of
health and human resources shall cause to be published, in English
and in each language which is the primary language of two percent
or more of the state's population, and shall cause to be available
on the state website provided for in section five of this article,
the following printed materials in such a way as to ensure that the
information is easily comprehensible:
(1) Geographically indexed materials designed to inform the female of public and private agencies and services available to
assist a female through pregnancy, upon childbirth, and while the
child is dependent, including adoption agencies, which shall
include a comprehensive list of the agencies available, a
description of the services they offer and a description of the
manner, including telephone numbers, in which they might be
contacted or, at the option of the department of health and human
resources, printed materials including a toll-free, 24-hour a day
telephone number which may be called to obtain, orally, such a list
and description of agencies in the locality of the caller and of
the services they offer; and
(2) Materials designed to inform the female of the probable
anatomical and physiological characteristics of the unborn child at
two-week gestational increments from the time when a female can be
known to be pregnant to full term, including any relevant
information on the possibility of the unborn child's survival and
pictures or drawings representing the development of unborn
children at two-week gestational increments:
Provided, That any
such pictures or drawings must contain the dimensions of the fetus
and must be realistic and appropriate for the stage of pregnancy
depicted. The materials shall be objective, nonjudgmental, and
designed to convey only accurate scientific information about the
unborn child at the various gestational ages. The material shall
also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly
associated with each procedure, the possible detrimental
psychological effects of abortion and the medical risks commonly
associated with carrying a child to term.
(b)
Legibility. -- The materials referred to in subsection (a)
of this section shall be printed in a typeface large enough to be
clearly legible. The website provided for in section five of this
article shall be maintained at a minimum resolution of seventy dots
per inch. All pictures appearing on the website shall be a minimum
of 200x300 pixels. All letters on the website shall be a minimum
of eleven-point font. All information and pictures shall be
accessible with an industry standard browser requiring no
additional plug-ins.
(c)
Availability. -- The materials required under this section
shall be available at no cost from the department of health and
human resources upon request and in appropriate number to any
person, facility or hospital.
§16-2I-5. Internet website.
The department of health and human resources shall develop and
maintain a stable internet website to provide the information
described under section four of this article. No information
regarding who uses the website may be collected or maintained. The
department of health and human resources shall monitor the website
on a daily basis to prevent and correct tampering.
§16-2I-6. Procedure in case of medical emergency.
When a medical emergency compels the performance of an
abortion, the physician shall inform the female, prior to the
abortion if possible, of the medical indications supporting the
physician's judgment that an abortion is necessary to avert her
death or that a 24-hour delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
§16-2I-7. Reporting requirements.
(a)
Reporting form. -- Within ninety days after this article
is enacted, 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 physician provided the
information described in subsection (a), section three of this
article; of that number, the number provided by telephone and the
number provided in person; and of each of those numbers, the number
provided in the capacity of a referring physician and the number
provided in the capacity of a physician who is to perform the
abortion;
(2) The number of females to whom the physician or an agent of
the physician provided the information described in subsection (b),
section three of this article; of that number, the number provided
by telephone and the number provided in person; of each of those
numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician
who is to perform the abortion; and of each of those numbers, the
number provided by the physician and the number provided by an
agent of the physician;
(3) The number of females who availed themselves of the
opportunity to obtain a copy of the printed information described
in section four of this article other than on the website, and the
number who did not; and of each of those numbers, the number who,
to the best of the reporting physician's information and belief,
went on to obtain the abortion; and
(4) The number of abortions performed by the physician in
which information otherwise required to be provided at least
twenty-four hours before the abortion was not so provided because
an immediate abortion was necessary to avert the female's death,
and the number of abortions in which the information was not so
provided because a delay would create serious risk of substantial
and irreversible impairment of a major bodily function.
(b)
Distribution of forms. -- 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 this article is
enacted, 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)
Reporting requirement. -- 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 three of this article during the previous calendar
year shall submit to 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)
Failure to report as required. -- 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 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)
Public statistics. -- By the first day of August 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 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
department of health and human resources shall take care to ensure
that none of the information included in the public reports could
reasonably lead to the identification of any physician who
performed or treated an abortion, or any mother who has had an
abortion, in accordance with subsection (a), (b) or (c) of this
section.
(f)
Modifications by legislative rule. -- 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), 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-8. Criminal penalties.
Any person who knowingly or recklessly performs or attempts to
perform an abortion in violation of this article shall be guilty of
a felony. Any physician who knowingly or recklessly submits a
false report under subsection (c) of section six shall be guilty of
a misdemeanor. No penalty may be assessed against the female upon
whom the abortion is performed or attempted to be performed. No
penalty or civil liability may be assessed for failure to comply
with section three (b) (3) or that portion of section three (c)
requiring a written certification that the female has been informed
of her opportunity to review the information referred to in section
three (b) (3) unless the department of health and human resources
has made the printed materials available at the time the physician
or the physician's agent is required to inform the female of her
right to review them.
§16-2I-9. Civil remedies.
(a)
Civil suits for violation. -- Any person upon whom an
abortion has been performed without this article having been
complied with, the father of the unborn child who was the subject
of such an abortion, or the grandparent of such an unborn child may
maintain an action against the person who performed the abortion in knowing or reckless violation of this article for actual and
punitive damages. Any person upon whom an abortion has been
attempted without this article having been complied with may
maintain an action against the person who attempted to perform the
abortion in knowing or reckless violation of this article for
actual and punitive damages.
(b)
Suit to compel statistical report. -- If the department of
health and human resources fails to issue the public report
required by subsection (e) of section six, any group of ten or more
citizens of this state may seek an injunction in a court of
competent jurisdiction against the secretary of the health and
human resources requiring that a complete report be issued within
a period stated by court order. Failure to abide by such an
injunction shall subject the secretary to sanctions for civil
contempt.
(c)
Attorney's fee. -- If judgment is rendered in favor of the
plaintiff in any action described in this section, the court shall
also render judgment for a reasonable attorney's fee in favor of
the plaintiff against the defendant. If judgment is rendered in
favor of the defendant and the court finds that the plaintiff's
suit was frivolous and brought in bad faith, the court shall also
render judgment for a reasonable attorney's fee in favor of the
defendant against the plaintiff.
§16-2I-10. Protection of privacy in court proceedings.
In every civil or criminal proceeding or action brought under
this article, the court shall rule whether the anonymity of any
female upon whom an abortion has been performed or attempted shall
be preserved from public disclosure if she does not give her
consent to such disclosure. The court, upon motion or sua sponte,
shall make such a ruling and, upon determining that her anonymity
should be preserved, shall issue orders to the parties, witnesses,
and counsel and shall direct the sealing of the record and
exclusion of individuals from courtrooms or hearing rooms to the
extent necessary to safeguard her identity from public disclosure.
Each such order shall be accompanied by specific written findings
explaining why the anonymity of the female should be preserved from
public disclosure, why the order is essential to that end, how the
order is narrowly tailored to serve that interest, and why no
reasonable less restrictive alternative exists. In the absence of
written consent of the female upon whom an abortion has been
performed or attempted, anyone, other than a public official, who
brings an action under subsection (a) of section nine shall do so
under a pseudonym. This section may not be construed to conceal
the identity of the plaintiff or of witnesses from the defendant.
§16-2I-11. Severability.
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
that any one or more provision, section, subsection, sentence,
clause, phrase, or word be declared unconstitutional.
NOTE: The purpose of this bill is to create the women's right
to know act. The act sets forth the requirements for informed
consent before an abortion is to be performed. An exception to the
required informed consent is provided for emergencies. The bill
requires the department of health and human resources to establish
a website and to publish information on alternatives to abortion,
and the risks of and effects of abortion. Under the bill,
physicians are required to report statistics regarding the informed
consent procedure. The bill also provides criminal penalties for
violations of the act and it provides specific civil remedies to
include actual and punitive damages for violations of the act and
it provides a procedure for the protection of privacy in court
actions.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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