H. B. 2036
(By Delegate Border)
[Introduced January 11, 2007; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §33-42-8 of the Code of West Virginia, 1931, as
amended, relating to establishing the crime of partial birth infanticide;
penalty; definitions; and exceptions.
Be it enacted by the Legislature of West Virginia:
That §33-42-8 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-42-8. Partial-birth infanticide prohibited; criminal penalty;
definitions; exceptions.
(a) Any person who knowingly performs a partial-birth abortion and
thereby kills a human fetus is guilty of a felony and shall be fined not less
than ten thousand dollars, nor more than fifty thousand dollars, or imprisoned
not more than two years, or both fined and imprisoned. This section does not
apply to a partial-birth abortion that is necessary to save the life of a mother
when her life is endangered by a physical disorder, illness or injury.
(b) A physician charged pursuant to this section may seek a hearing before the
West Virginia board of medicine on the issue of whether the physician's act was
necessary to save the life of a mother pursuant to the provisions of subsection
(a) of this section. The findings of the board of medicine are admissible on
this issue at the trial of the physician. Upon a motion by the defendant, the
court shall delay the beginning of trial for not more than thirty days to permit
the board of medicine hearing to take place.
(c) No woman may be prosecuted under the provisions of this section for having a
partial-birth abortion, nor may she be prosecuted for conspiring to violate the
provisions of this section.
(a) Any person who knowingly performs partial birth infanticide and
thereby kills a human infant is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than two years nor
more than ten years and fined not more than one hundred thousand dollars.
(b) For the purposes of this section, "partial birth infanticide"
means any deliberate act that: (i) Is intended to kill a human infant who has
been born alive, but who has not been completely extracted or expelled from its
mother; and that (ii) does kill such infant, regardless of whether death occurs
before or after extraction or expulsion from its mother has been completed.
The term "partial birth infanticide" may not under any circumstances
be construed to include any of the following procedures: (i) The suction
curettage abortion procedure; (ii) the suction aspiration abortion procedure;
(iii) the dilation and evacuation abortion procedure involving dismemberment of
the fetus prior to removal from the body of the mother; or (iv) completing
delivery of a living human infant and severing the umbilical cord of any infant
who has been completely delivered.
(c) For the purposes of this section, "human infant who has been born
alive" means a product of human conception that has been completely or
substantially expelled or extracted from its mother, regardless of the duration
of pregnancy, which after such expulsion or extraction breathes or shows any
other evidence of life such as beating of the heart, pulsation of the umbilical
cord, or definite movement of voluntary muscles, whether or not the umbilical
cord has been cut or the placenta is attached.
(d) For purposes of this section, "substantially expelled or extracted from
its mother" means, in the case of a headfirst presentation, the infant's
entire head is outside the body of the mother, or, in the case of breech
presentation, any part of the infant's trunk past the navel is outside the body
of the mother.
(e) This section does not prohibit the use by a physician of any procedure that,
in reasonable medical judgment, is necessary to prevent the death of the mother,
so long as the physician takes every medically reasonable step, consistent with
such procedure, to preserve the life and health of the infant. A procedure may
not be deemed necessary to prevent the death of the mother if completing the
delivery of the living infant would prevent the death of the mother.
(f) The mother may not be prosecuted for any criminal offense based on the
performance of any act or procedure by a physician in violation of this section.
NOTE: The purpose of this bill is to establish the crime of partial birth
infanticide.
Strike-throughs indicate language that would be stricken from the present law,
and underscoring indicates new language that would be added.