HB4588 S H&HR AM #2

Johnson 7909

    The Committee on Health and Human Resources moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-2M-1, §16-2M-2, §16-2M-3, §16-2M-4, §16-2M-5 and §16-2M-6, all to read as follows:

ARTICLE 2M. THE PAIN-CAPABLE FETUS PROTECTION ACT.

§16-2M-1. Findings.

    The Legislature finds that there is substantial medical evidence that a fetus is capable of experiencing pain by twenty weeks after fertilization.

§16-2M-2. Definitions.

    For purposes of this article, the following words and phrases have the following meanings:

    (1) "Attempt to perform or induce an abortion" means an act or an omission of a statutorily required act that, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of the applicable provisions of this code.

    (2) “Fertilization” means the fusion of a human spermatozoon with a human ovum.

    (3) "Fetus” means the developing young in the uterus, specifically the unborn offspring in the postembryonic period from nine weeks after fertilization until birth.

    (4) "Medical emergency" means a condition that, in reasonable medical judgment, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy without first determining post-fertilization age to avert her death or for which the delay necessary to determine post-fertilization age will create serious risk of substantial and irreversible physical impairment of a major bodily function.

    (5) “Non-medically viable fetus” means a fetus which contains sufficient fetal anomalies which render the fetus medically futile and unable to sustain life upon birth in the reasonable medical judgment of a reasonably prudent physician.

    (6) "Physician" means a person with an unlimited license to practice allopathic medicine pursuant to article three of chapter thirty of this code or osteopathic medicine pursuant fourteen of chapter thirty of this code.

    (7) "Post fertilization age" means the age of the fetus as calculated from the fertilization of the human ovum.

    (8) "Probable post fertilization age of the fetus" means, in reasonable medical judgment and with reasonable probability, the post fertilization age of the fetus at the time an abortion is planned to be performed.

    (9) “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

    (10) “Woman” means a female human being whether or not she has reached the age of majority.

§16-2M-3. Determination of post fertilization age.

    Except in the case of a medical emergency or a non-medically viable fetus, no abortion may be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post fertilization age of the fetus or relied upon such a determination made by another physician. In making this determination, the physician shall make such inquiries of the woman and perform or cause to be performed medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post fertilization age.

§16-2M-4. Abortion of fetus of twenty or more weeks post fertilization age prohibited.

    (a) No person may perform or induce, or attempt to perform or induce, an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post fertilization age of the fetus is twenty or more weeks unless there is reasonable medical judgment that there exists a non-medically viable fetus or the woman has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function of the woman.

    (b) When an abortion upon a woman whose fetus has been determined to have a probable post fertilization age of twenty or more weeks is not prohibited by subsection (a) of this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the fetus to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman of the substantial and irreversible physical impairment of a major bodily function of the woman than would other available methods.

§16-2M-5. Reporting.

    (a) Any physician who performs or induces or attempts to perform or induce an abortion shall report to the Bureau for Public Health. The reporting shall be on a schedule and on forms set forth in legislative rules promulgated by the Secretary of the Department of Health and Human Resources in accordance with the provisions of article three, chapter twenty-nine of this code. The reports shall include the following information:

    (1) Post fertilization age:

    (A) If a determination of probable post fertilization age was made, whether ultrasound was employed in making the determination, and the week of probable post fertilization age determined.

    (B) If a determination of probable post fertilization age was not made, the basis of the determination that a medical emergency existed or that there existed a non-medically viable fetus.

    (2) Method of abortion;

    (3) If the probable post fertilization age was determined to be twenty or more weeks, the basis of the determination that there existed a non-medically viable fetus or the pregnant woman had a condition which so complicated her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function or if there existed a non-medically viable fetus; and

    (4) If the probable post fertilization age was determined to be twenty or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the fetus to survive and, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would other available methods.

    (b) Reports required by subsection (a) of this section may not contain the name or the address of the patient whose pregnancy was terminated nor may the report contain any information identifying the patient. These reports shall be maintained in strict confidence by the department, may not be available for public inspection, and may not be made available except pursuant to court order.

    (c) Beginning June 30, 2015, and annually thereafter, 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 provide the statistics for all previous calendar years from the effective date of this section, 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 pregnant woman upon whom an abortion was performed, induced or attempted.

§16-2M-6. Penalties.

    Any person who intentionally or recklessly performs or induces or attempts to perform or induce an abortion in violation of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined up to four thousand dollars. No penalty may be assessed against any woman upon whom an abortion is performed or induced or attempted to be performed or induced.