H. B. 2531


(By Delegate R. M. Thompson)

[Introduced February 21, 2005 ; referred to the

Committee on Health and Human Resources then the Judiciary.]





A BILL to amend and reenact §16-2I-7 and §16-2I-9 of the Code of West Virginia, 1931, as amended, all relating to requiring physicians and medical institutions to report instances where abortions have been performed due to perceived congenital defects of fetuses; providing a civil penalty for failing to report an abortion.

Be it enacted by the Legislature of West Virginia:

That §16-2I-7 and §16-2I-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.

§16-2I-7. Reporting requirements.

(a) Within ninety days of the effective date of this article, the Secretary of 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 information described in subsection (a), section two of this article was provided;

(2) The number of females to whom the physician or an agent of the physician provided the information described in subsection (b), section two of this article;

(3) The number of females who availed themselves of the opportunity to obtain a copy of the printed information described in section three of this article other than on the website;

(4) The number of abortions performed in cases involving medical emergency; and

(5) The number of abortions performed in cases not involving a medical emergency; and

(6) The number of abortions performed in cases not involving medical emergency in which a fetus was perceived as being afflicted with any significant congenital defect.

(b) The Secretary of 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 the effective date of this article 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) 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 two of this article during the previous calendar year shall submit to the Secretary of 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) 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 Secretary of 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) By the first day of August of each year, the Secretary of
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 Secretary of the Department of Health and Human Resources shall prevent any of the information from being included in the public reports that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section. Any information that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section is exempt from disclosure under the freedom of information act, article one, chapter twenty-nine-b of this code.
(f) The Secretary of 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) of this section 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-9. Civil remedies.

(a) Any person upon whom an abortion has been attempted or performed without section two of this article having been complied with may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages. If the person upon whom an abortion has been attempted or performed without section two of this article having been complied with is a minor, the legal guardian of the minor may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages.

(b) Any physician or medical institution that fails to report any abortion as required under subsection (a), section seven of this article, shall be subject to a civil penalty which shall be equivalent to triple the monetary cost of the abortion performed.



NOTE: The purpose of this bill is to require physicians and medical institutions to report instances where abortions have been performed due to perceived congenital defects of fetuses while providing a civil penalty for failing to report an abortion.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.