From the House Journal for Wednesday, March 16, 2005.  Click on this link:

http://www.legis.state.wv.us/Bulletin_Board/2005/rs/House/H_DAILY_JOURNAL/masterfrmFrm.htm

then select the date March 16.  Scroll down that page until you find the notes on SB 146.  Those notes are also found below.

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Third Reading

S. B. 146, Establishing Unborn Victims of Violence Act, on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
Delegates Webster, Brown, Caputo, Hatfield and Morgan moved to amend the bill on page two, after the enacting clause, by striking out the remainder of the bill 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 §61-2A-1; §61-2A- 2; §61-2A- 3; §61-2A-4; §61-2A-5; and §61-2A-6, all to read as follows:

ARTICLE 2A. CRIMES AGAINST A PREGNANT FEMALE OR HER EMBRYO OR FETUS.

§61-2A-1. Legislative findings.
The Legislature finds as follows:
(1) That the Legislature of the state of West Virginia has a duty to maintain and to protect the life and health of a pregnant female and to ensure the optimal well-being of the potential life and health of her embryo or fetus in utero, at defined stages of gestation, from the consequences of the acts or omissions of a third party that may cause death or injury to her, deprive her embryo or fetus of its potential for life or health, or cause physical injury to her embryo or fetus;
(2) That when a pregnant female's privacy interests are not at issue, then her right of privacy does not conflict with the right and duty of the state of West Virginia to determine whether, and at what time during gestation, it should protect a pregnant female and the potential life and health of her embryo or fetus in utero; and
(3) That in enacting this legislation, the Legislature determines that an embryo or fetus in utero is live and possesses DNA and a complement of genes and chromosomes that identify the embryo or fetus as of the human species. The Legislature further determines that if an embryo or fetus is lost or injured as a result of the unlawful acts of a third party, there is a second victim and criminal liability and punishment should attach. But beyond these determinations, the Legislature as a body does not intend to make a statement as to any moral, religious, scientific or other belief that may be held by an individual or a group of individuals regarding the question of when a human life begins.
§61-2A-2. Definitions.
(1) 'Embryo' means the developing human in its early stages. The embryonic period commences at the beginning of the third week after ovulation/fertilization, which coincides in time with the expected day that the next menstruation would have started. The end of the embryonic period and the beginning of the fetal period occurs eight weeks after fertilization, or ten weeks after the onset of the last menstrual period. At the end of the embryonic period, the major portion of lung development is yet to occur, but few other new major body structures are formed after this time.
(1) 'Gestation' means the period of time during which a pregnant female carries an embryo or fetus in her uterus during pregnancy.
(2) 'In utero' means in the uterus, during gestation.
(3) 'Non-viable fetus' means a fetus that has ended the embryonic period and begun the fetal period. The fetal period of a non-viable fetus begins eight weeks after fertilization, and exists until the fetus becomes a viable fetus.
(4) 'Pregnant female' means a female who is in gestation.
(5) 'Viable fetus' means a fetus that has developed and matured so as to be capable of successfully surviving the trauma of birth. The time of development and maturity of the fetus may vary if the fetus was with or without proper prenatal care, or if a potentially viable fetus had the aid of medical support and facilities. A fetus with the aid of proper medical support and facilities may be viable between the twentieth and twenty-fourth weeks of gestation or when it has developed an estimated fetal weight of at least 500 grams, as determined by an accepted medical procedure, including, but not limited to, ultrasonic imaging and examination.
§61-2A-3. Exceptions to application of article.
(a) The provisions of this article do not apply to:
(1) Acts that cause the loss of an embryo or fetus if those acts were performed during an abortion to which the pregnant female, or a person authorized by law to act on her behalf, consented or for which the consent was implied by law;
(2) Acts or omissions by medical personnel during or as a result of the delivery of medical or health-related treatment or services, including, but not limited to, medical care, abortion, diagnostic testing, or fertility treatment;
(3) Acts or omissions by medical personnel in performing lawful procedures involving embryos that are not in a stage of gestation in utero;
(4) Acts involving the use of force in lawful defense of self or another, but not a fetus; or
(5) Acts or omissions of a pregnant female with respect to the fetus she is carrying.
(b) For purposes of the enforcement of the provisions of this section, a violation of the provisions of the women's right to know act, article two-i, chapter sixteen of this code, shall not serve as a waiver of the protection afforded by the provisions of subdivision (1), subsection (a) of this section.
§61-2A-4. Enhanced penalties for violent acts against a pregnant female carrying embryo or non-viable fetus.

(a) For purposes of enforcing the provisions of sections one, four, and seven, subsections (a) and (c) of section nine, sections ten and ten-b, and subsection (a) of section twenty-eight, article two of this chapter, the offender is subject to enhanced penalties as provided by this section, if:
(1) The victim of the above-described criminal conduct is a pregnant female carrying an embryo or non-viable fetus at the time the alleged act was committed;
(2) The act or acts of the offender cause the death or injury of the pregnant female or cause the loss of, or injury to, her embryo or non-viable fetus;
(3) The indictment or warrant, as the case may be, alleges elements as described in subdivisions (1) and (2) of this subsection;
(4) Any alleged elements as described in subdivisions (1) and (2) of this subsection are submitted to a jury as a special jury interrogatory; and
(5) The jury, or the judge without a jury, as trier of fact as to the allegations set forth in the indictment or warrant, finds that the elements described in subdivisions (1) and (2) of this subsection that increase a penalty for crime beyond a prescribed statutory maximum are proved beyond reasonable doubt.
(b) If the offender is convicted of murder, as defined in section one, article two of this chapter, then in addition to the penalties provided by sections two and three, article two of this chapter, the court may impose an additional sentence of imprisonment of not more than ten years.
(c) If the offender is convicted of voluntary manslaughter under section four, article two of this chapter, then in addition to the penalty provided for by section four, the court may impose an additional sentence of imprisonment of not more than five years.
(d) If the offender is convicted of attempting to kill or injure by poison under section seven, article two of this chapter, then in addition to the penalty provided for by section seven, the court may impose an additional sentence of imprisonment of not more than five years.
(e) If the offender is convicted of malicious assault under subsection (a), section nine, article two of this chapter, then in addition to the penalty provided for by subsection (a), section nine, the court may impose an additional sentence of imprisonment of not more than three years.
(f) If the offender is convicted of battery under subsection (c), section nine, article two of this chapter, then in addition to the penalty provided for by subsection (c), section nine, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
(h) If the offender is convicted of assault under section ten, article two of this chapter, then in addition to the penalty provided for by section ten, the court may impose an additional sentence of imprisonment of not more than two years in a state correctional facility or confinement of not more than six months in a county or regional jail.
(i) If the offender is convicted of malicious assault under subsection (a), section ten-b, article two of this chapter, then in addition to the penalty provided for by subsection (a), section ten-b, the court may impose an additional sentence of imprisonment of not more than five years.
(j) If the offender is convicted of unlawful assault under subsection (b), section ten-b, article two of this chapter, then in addition to the penalty provided for by subsection (b), section ten-b, the court may impose an additional sentence of imprisonment of not more than two years.
(k) If the offender is convicted of battery under subsection (c), section ten-b, article two of this chapter, then in addition to the penalty provided for by subsection (c), section ten-b, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
(1) If the offender is convicted of domestic battery under subsection (a), section twenty-eight, article two of this chapter, then in addition to the penalty provided for by subsection (a), section twenty-eight, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
§61-2A-5. Recognizing a viable fetus as a distinct victim of certain crimes of violence against the person.

(a) For purposes of enforcing the provisions of article two of this chapter, relating to crimes against the person, a pregnant female and the viable fetus she is carrying each constitute separate and distinct victims.
(b) As to an offense committed against a viable fetus, in addition to the elements of the underlying offense, the state must prove, beyond a reasonable doubt, that the alleged offender:
(A) intended to cause death or injury to the pregnant female or to cause the loss of, or injury to, her viable fetus, or (B) knew that such acts would cause death or injury to the pregnant female or would cause the loss of, or injury to, her viable fetus, or (c) knew that the acts created a strong probability of death or injury to the pregnant female or the loss of, or injury to, her viable fetus.
§61-2A-6. Other convictions not barred.
A prosecution for or conviction under this article is not a bar to conviction of or punishment for any other crime committed by the defendant arising from the same incident."
The question before the House being on the adoption of the foregoing amendment, the same was put and did not prevail.
Delegates Webster, Amores, Brown, Caputo, Hatfield and Morgan then moved to amend the bill on page five, section thirty, following line fifty-two , by inserting a new subsection, designated subsection (g), to read as follows:
"(g) By enacting this section during the regular session of the Legislature, 2005, the Legislature as a body does not intend to make a statement as to any moral, religious, scientific or other belief that may be held by an individual or a group of individuals regarding the question of when a human life begins."
The question before the House being on the adoption of the amendment, the same was put and the result of the viva voce vote was inconclusive.
Whereupon,
The House divided on the question and there being thirty members who arose in support of the amendment, the Speaker declared that an insufficient number having voted by rising, the amendment was rejected.
On both the foregoing amendments, Delegates requested to be recorded in the Journal as follows:
Yea:Delegates Webster, Talbott, Long, Proudfoot, Wells, Campbell, Hrutkay, Mahan, Palumbo, Amores, Morgan, Caputo, Manchin, Brown, Doyle and Hatfield.
On the second amendment offered by Delegate Webster, et al, Delegates requested to be recorded in the Journal as follows:
Yea: Delegates Perdue, Spencer, Poling, Longstreth and Mr. Speaker, Mr. Kiss.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 125), and there were--yeas 81, nays 17, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Amores, Brown, Campbell, Caputo, Doyle, Hatfield, Hrutkay, Hunt, Long, Longstreth, Mahan, Marshall, Morgan, Palumbo, Talbott, Webster and Wells.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 146) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 126), and there were--yeas 87, nays 11, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Amores, Brown, Campbell, Caputo, Doyle, Hatfield, Hrutkay, Hunt, Marshall, Talbott and Webster.
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 146) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.