H. B. 2025
(By Delegate Azinger)
[Introduced January 9, 2008; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §16-2K-1, relating to requiring any abortion be
performed in a hospital or only by a physician with admitting privileges to a
hospital; providing, if not performed in a hospital, anesthesia must be given
by a licensed anesthesiologist or licensed certified nurse anesthetist;
requiring certain reporting requirements of abortion or reproductive health
centers and for license suspension for failure to report; and, providing a
basis for professional disciplinary action, injunctive relief, damages and
penalties for violations.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding
thereto a new article, designated §16-2K-1, to read as follows:
ARTICLE 2K. VENUES RESTRICTED FOR ABORTION PROCEDURE.
§16-2K-1. Abortions to be performed only in hospital or by physician
with admitting privileges.
(a) For purposes of this article, the following terms shall have the
following meanings:
(1) "Abortion" means the use or prescription of any instrument,
medicine, drug, or any other substance or device with the intent to terminate
the pregnancy of a woman known by the defendant to be pregnant. Such use or
prescription is not an abortion if done with the intent to do any of the
following:
(A) Save the life or preserve the health of an unborn child;
(B) Remove a dead unborn child; and
(C) Remove an unborn child prematurely in order to preserve the health of the
mother and her unborn child.
(2) "Abortion or reproductive health center" means an institution
licensed as such pursuant to the provisions of the law of this state.
(3) "Anesthesiologist" means a physician qualified by appropriate
medical standards to administer anesthesia.
(4) "Certified registered nurse anesthetist" means a person licensed
as such pursuant to the provisions of the law of this state.
(5) "Facility" means any place other than a hospital.
(6) "Hospital" means an institution licensed as such pursuant to the
law of this state.
(7) "Hospital admitting privileges" means the privileges given to a
physician by a hospital allowing the physician to practice medicine at that
hospital or allowing the physician to admit patients to that hospital.
(8) "Medical emergency" means that condition which, on the basis of
the physician's good faith clinical judgment, complicates the medical condition
of a pregnant woman so as to necessitate the immediate abortion of her pregnancy
to avert her death or in which a delay will create a serious risk of substantial
and or reversible impairment of a major bodily function.
(9) "Physician" means any person licensed to practice medicine in this
state. The term includes medical doctors and doctors of osteopathy.
(b) Except in the case of a medical emergency, any physician performing an
abortion in a facility other than a hospital, must have admitting privileges at
a hospital within the local service area where the abortion is to be performed.
(c) Except in the case of a medical emergency, any physician performing an
abortion in a facility other than a hospital, where the procedure requires
general anesthesia, shall perform the abortion only if the anesthesia is
administered by a licensed anesthesiologist or a licensed certified registered
nurse anesthetist.
(d) Every abortion or reproductive health center shall report to the Bureau for
Public Health, the name of each physician and the name of the hospital at which
the physician has admitting privileges, and the name of each anesthesiologist
and certified registered nurse anesthetist, providing services at the abortion
or reproductive health center. The report shall be made on or before the last
day of January of each year and a supplemental report for any departing or new
physician, anesthesiologist, or certified registered nurse anesthetist shall be
made within thirty days of the departure or beginning service. All reports shall
be made on forms provided by the Bureau for Public Health.
(e) (1) Any person who intentionally, knowingly, or recklessly violates any
provision of this article is guilty of a misdemeanor and shall be fined not more
than five hundred dollars and confined in jail for not more than thirty days.
(2) No physician may be guilty of violating the provisions of this section if he
or she can demonstrate, by a preponderance of the evidence, that he or she
reasonably believed to a medical certainty that providing the abortion was a
medical emergency. The determination and all supporting reasons shall be
documented in writing in the patient's medical records by the physician.
(3) Any abortion or reproductive health center that violates any provision of
this section shall, upon a determination by the Bureau for Public Health, have
its license suspended for not less than twelve months.
(f) In addition to the remedies available under common law or under the
statutory law of this state, failure to comply with any requirement of this
section shall:
(1) Provide a basis for a civil action for injunctive, compensatory, and
punitive damages. Any conviction under this section shall be admissible in a
civil court as prima facie evidence of a failure to meet any requirement of this
article. Any civil action may be based on a claim that the article was a result
of simple negligence, gross negligence, wantonness, willfulness, intention, or
other legal standard of care.
(2) Provide a basis for professional disciplinary action under any applicable
statutory or regulatory procedure for the suspension or revocation of the
license of any physician, nurse, or other licensed or regulated person.
(g) The provisions of this section are declared to be severable, and if any
provision, word, phrase, or clause of this section or the application thereof to
any person is held invalid, the invalidity may not affect the validity of the
remaining portions of this section.
(h) Nothing in this section may be construed as creating or recognizing a right
to abortion, nor shall it make lawful an abortion that is currently unlawful.
NOTE: The purpose of this bill is to require
that abortions be performed in hospitals or by physicians with admitting
privileges to a hospital within the local service area.
This article is new; therefore, strike-throughs and underscoring have been
omitted.