H. B. 3135
(By Delegate
Andes, (By Request))
[Introduced
March 13, 2009; 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 December 1 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 February 28 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 $500 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 August 1 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, is
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.