H. B. 4538
(By Delegate Andes (By Request))
[Introduced February 14, 2008; 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 where abortions have been performed due to perceived
congenital defects of fetuses; providing a civil penalty for failure 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.