WEST VIRGINIA.
* * *
CHAPTER 9. HUMAN SERVICES.
* * *
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND
OFFICE OF COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES
GENERALLY.
* * *
§
(a) No funds from the medicaid program accounts may be used to pay for the
performance of an abortion by surgical or chemical means unless:
(1) On the basis of the physician's best clinical judgment, there is:
(i) A medical emergency that so complicates a pregnancy as to necessitate an
immediate abortion to avert the death of the mother or for which a delay will
create grave peril of irreversible loss of major bodily function or an
equivalent injury to the mother: Provided, That an independent physician
concurs with the physician's clinical judgment; or
(ii) Clear clinical medical evidence that the fetus has severe congenital
defects or terminal disease or is not expected to be delivered; or
(2) The individual is a victim of incest or the individual is a victim of rape
when the rape is reported to a law-enforcement agency.
(b) The Legislature intends that the state's medicaid program not provide
coverage for abortion on demand and that abortion services be provided only as
expressly provided for in this section.
* * *
CHAPTER 16. PUBLIC HEALTH.
* * *
ARTICLE 2B. FAMILY PLANNING AND CHILD SPACING.
*
* *
§16-2B-2. Local boards of health authorized to establish
clinics; supervision; purposes; abortion not approved; approval by state board
of programs.
A local board of health, created and maintained pursuant to the provisions
of article two or article two-a of this chapter, is authorized to establish and
operate within its jurisdiction, one or more family planning and child spacing
clinics under the supervision of a licensed physician for the purpose of
disseminating information, conducting medical examinations and distributing
family planning and child spacing appliances, devices, drugs, approved methods
and medication without charge to indigent and medically indigent persons on
request and with the approval of said licensed physician. Such information,
appliances, devices, drugs, approved methods and medication shall be dispensed
only in accordance with the recipients' expressed wishes and beliefs and in
accordance with all state and federal laws for the dispensing of legend drugs: Provided,
That the procedure of abortion shall not be considered an approved method of
family planning and child spacing within the intent of this section and is
expressly excluded from the programs herein authorized. All local boards of
health receiving state or federal funds for family planning or child spacing
programs shall first receive approval by the state board of health of their
general plan of operation of such programs.
* * *
ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED
ON UNEMANCIPATED MINORS.
* * *
§16-2F-1. Legislative findings and intent.
The Legislature finds that immature minors often lack the ability to make
fully informed choices that take into account both immediate and long-range
consequences of their actions; that the medical, emotional and psychological
consequences of abortion are serious and of indeterminate duration,
particularly when the patient is immature; that in its current abortion policy
as expressed in Bellotti v. Baird, 443 U. S. 622 (1979) and H.
L. v. Matheson, 450 U. S. 398 (1981), the United States supreme court
clearly relies on physician's commitment to consider all factors, physical and
otherwise, before performing abortions on minors; that parents ordinarily
possess information essential to a physician's exercise of his best medical
judgment concerning their child; and that parents who are aware that their
minor daughter has had an abortion may better ensure that the minor receives
adequate medical attention after her abortion. The Legislature further finds
that parental consultation regarding abortion is usually desirable and in the
best interests of the minor.
The Legislature further finds in accordance with the U. S. Supreme Court's
decision in Bellotti v. Baird, 443 U. S. 622 (1979), and H. L. v.
Matheson, 450 U. S. 398 (1981), that there exists important and compelling
state interests (i) in protecting minors against their own immaturity, (ii) in
fostering the family structure and preserving it as a viable social unit, and
(iii) in protecting the rights of parents to rear their own children in their
own household.
It is, therefore, the intent of the Legislature to further these interests by
enacting this parental notice provision.
§16-2F-2. Definitions.
For purposes of this article, unless the context in which used clearly
requires otherwise:
(1) "Minor" means any person under the age of eighteen years who has
not graduated from high school.
(2) "Unemancipated minor" means any minor who is neither married nor
who has not been emancipated as pursuant to applicable federal law or as
provided by section twenty-seven, article seven, chapter forty-nine of this
code.
(3) "Actual notice" means the giving of notice directly, in person or
by telephone.
(4) "Constructive notice" means the giving of notice by certified
mail to the last known address of the parents or legal guardian, return receipt
requested.
(5) "Abortion" means the use of any instrument, medicine, drug or any
other substance or device with intent to terminate the pregnancy of a female
known to be pregnant and with intent to cause the expulsion of a fetus other
than by live birth: Provided, That nothing in this article shall be
construed so as to prevent the prescription, sale or transfer of intrauterine
contraceptive devices or other contraceptive devices or other generally
medically accepted contraceptive devices, instruments, medicines or drugs for a
female who is not known to be pregnant and for whom such contraceptive devices,
instruments, medicines or drugs were prescribed by a physician solely for
contraceptive purposes and not for the purpose of inducing or causing the
termination of a known pregnancy.
§16-2F-3. Parental notification required for abortions
performed on unemancipated minors; waiver; notice to minor of right of petition
to circuit court; minor to be referred for counseling.
(a) No physician may perform an abortion upon an unemancipated minor unless
such physician has given or caused to be given at least twenty-four hours
actual notice to one of the parents or to the legal guardian of the pregnant
minor of his intention to perform the abortion, or, if the parent or guardian
cannot be found and notified after a reasonable effort to do so, without first
having given at least forty- eight hours constructive notice computed from the
time of mailing to the parent or to the legal guardian of the minor: Provided,
That prior to giving the notification required by this section, the physician
shall advise the unemancipated minor of the right of petition to the circuit
court for waiver of notification: Provided, however, That any
such notification may be waived by a duly acknowledged writing signed by a
parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the legal guardian of
such pregnant minor, the physician shall refer such pregnant minor to a
counselor or caseworker of any church or school or of the department of human
services or of any other comparable agency for the purpose of arranging or
accompanying such pregnant minor in consultation with her parents. Such
counselor shall thereafter be authorized to monitor the circumstances and the
continued relationship of and between such minor and her parents.
(c) Parental notification required by subsection (a) of this section may be
waived by a physician, other than the physician who is to perform the abortion,
if such other physician finds that the minor is mature enough to make the
abortion decision independently or that notification would not be in the
minor's best interest: Provided, That such other physician shall not be
associated professionally or financially with the physician proposing to
perform the abortion.
§16-2F-4. Waiver of notification; petition to circuit
court; contents of petition; duties of attorney general and circuit clerk;
confidentiality of proceedings; appointment of counsel and limitation of
compensation; findings required to be made by court; petition to supreme court;
waiver of certain fees.
(a) A minor who objects to such notice being given to her parent or legal
guardian may petition for a waiver of such notice to the circuit court of the
county in which the minor resides or in which the abortion is to be performed,
or to the judge of either of such courts. Such minor may so petition and
proceed in her own right or, at her option, by a next friend.
(b) Such petition need not be made in any specific form and shall be sufficient
if it fairly sets forth the facts and circumstances of the matter, but shall
contain the following information:
(i) The age of the petitioner and her educational level;
(ii) The county and state in which she resides;
(iii) A brief statement of petitioner's reason or reasons for the desired
waiver of notification of the parent or guardian of such minor petitioner.
No such petition shall be dismissed nor shall any hearing thereon be refused
because of any defect in the form of the petition.
(c) Upon the effective date of this article or as soon thereafter as may be,
the attorney general shall prepare suggested form petitions and accompanying
instructions and shall make the same available to the several clerks of the
circuit courts. Such clerks shall see that a sufficient number of such
suggested form petitions and instructions are available in the clerk's office
for the use of any person desiring to use the same for the purposes of this
section.
(d) All proceedings held pursuant to this article shall be confidential and the
court shall conduct all such proceedings in camera. The court shall inform the
minor petitioner of her right to be represented by counsel and that if she is
without the requisite funds to retain the services of an attorney, that the
court will appoint an attorney to represent her interest in the matter. If the
minor petitioner desires the services of an attorney, an attorney shall be
appointed to represent such minor petitioner, if she advises the court under
oath or affidavit that she is financially unable to retain counsel. Any
attorney appointed to represent such minor petitioner shall be appointed and
paid for her services pursuant to the provisions of article twenty-one, chapter
twenty-nine of this code: Provided, That the pay to any such attorney
pursuant to such appointment shall not exceed the sum of one hundred dollars.
(e) The court shall conduct a hearing upon the petition without delay, but in
no event shall the delay exceed the next succeeding judicial day, and the court
shall render its decision immediately upon its submission and, in any event, an
order reflecting the findings of fact and conclusions of law reached by the
court and its judgement shall be endorsed by the judge thereof not later than
twenty-four hours following such submission and shall be forthwith entered of
record by the clerk of the court. All testimony, documents and other evidence
presented to the court, as well as the petition and any orders entered thereon
and all records of whatsoever nature and kind relating to the matter shall be
sealed by the clerk and shall not be opened to any person except upon order of
the court and, then, only upon good cause being shown therefor. A separate
order book for the purposes of this article shall be maintained by such clerk
and shall likewise be sealed and not open to inspection by any person save upon
order of the court for good cause shown.
(f) Notice as required by section three of this article shall be ordered waived
by the court if the court finds either:
(1) That the minor petitioner is mature and well informed sufficiently to make
the decision to proceed with the abortionindependently and without the
notification or involvement of her parent or legal guardian, or
(2) That notification to the person or persons to whom such notification would
otherwise be required would not be in the best interest of the minor
petitioner.
(g) If or when the circuit court, or the judge thereof, shall refuse to order
the waiver of the notification required by section three of this article, a
copy of the petition and all orders entered in the matter and all other
documents and papers submitted to the circuit court, may be presented to the
supreme court of appeals, or to any justice thereof if such court then be in
vacation, and such court or justice if deemed proper, may thereupon order the
waiver of notification otherwise required by section three of this article. The
supreme court of appeals or justice thereof shall hear and decide the matter without
delay and shall enter such orders as such court or justice may deem
appropriate.
(h) If either the circuit court or the supreme court of appeals, or any judge
or justice thereof if either of such courts be then in vacation, shall order a
waiver of the notification required by section three of this article, any
physician to whom a certified copy of said order shall be presented may proceed
to perform the abortion to the same extent as if such physician were in
compliance with the provisions of said section three and, notwithstanding the
fact that no notification is given to either the parent or legal guardian of
any such unemancipated minor, any such physician shall not be subject to the
penalty provisions which may be prescribed by this article for such failure of
notification.
(i) No filing fees may be required of any minor who avails herself of any of
the procedures provided by this section.
§16-2F-5. Emergency exception from notification
requirements.
The notification requirements of section three of this article do not apply
where there is an emergency need for an abortion to be performed if the
continuation of the pregnancy constitutes an immediate threat and grave risk to
the life or health of the pregnant minor and the attending physician so
certifies in writing setting forth the nature of such threat or risk and the
consequences which may be attendant to the continuation of the pregnancy. Such
writing shall be maintained with the other medical records relating to such
minor which are maintained by the physician and the facility at which such
abortion is performed.
§16-2F-6. Reporting requirements for physicians.
Any physician performing an abortion upon an unemancipated minor shall
provide the department of health a written report of the procedure within
thirty days after having performed the abortion. The department of health shall
provide reporting forms for this purpose to all physicians and public health
facilities required to be licensed pursuant to article five-b of this chapter.
The following information, in addition to any other information which may be
required by the department of health, regarding the minor receiving the
abortion shall be included in such reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births;
(5) Previous abortions;
(6) Complications, if any, of the abortion being reported;
(7) Reason for waiver of notification of the minor's parent or guardian, if
such notice was waived; and
(8) The city and county in which the abortion was performed.
Any such report shall not contain the name, address or other information by
which the minor receiving the abortion may be identified.
§16-2F-7. Article not to be construed to require
abortion.
Nothing in this article, nor in any order issued pursuant thereto, shall
require that a physician perform an abortion or that any person be required to
assist in the performance of an abortion if such physician or person, for any
reason, medical or otherwise, does not wish to perform or assist in such
abortion.
§16-2F-8. Penalties.
Any person who knowingly performs an abortion upon an unemancipated minor
in violation of this article or who knowingly fails to conform to any
requirement of this article shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than five hundred dollars nor more
than one thousand dollars or imprisoned in the county jail not more than thirty
days, or both fined and imprisoned.
§16-2F-9. Severability.
The provisions of subsection (cc), section ten, article two, chapter two of
this code shall apply to the provisions of this article to the same extent as
if said subsection were set forth in extenso herein.
* * *
ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.
§16-2I-1. Definitions.
For the purposes of this article, the words or phrases defined in this section
have these meanings ascribed to them.
(a) "Abortion" means the use or prescription of any instrument,
medicine, drug or any other substance or device intentionally to terminate the
pregnancy of a female known to be pregnant with an intention other than to
increase the probability of a live birth, to preserve the life or health of the
child after live birth or to remove a dead embryo or fetus.
(b) "Attempt to perform an abortion" means an act, or an omission of
a statutorily required act, that, under the circumstances as the actor believes
them to be, constitutes a substantial step in a course of conduct planned to
culminate in the performance of an abortion in West Virginia in violation of
this article.
(c) "Medical emergency" means any condition which, on the basis of a
physician's good-faith clinical judgment, so complicates the medical condition
of a pregnant female as to necessitate the immediate termination of her
pregnancy to avert her death or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
(d) "Physician" means any medical or osteopathic doctor licensed to
practice medicine in this state.
(e) "Probable gestational age of the embryo or fetus" means what, in
the judgment of the physician, will with reasonable probability be the
gestational age of the embryo or fetus at the time the abortion is planned to
be performed.
(f) "Stable internet website" means a website that, to the extent
reasonably practicable, is safeguarded from having its content altered other
than by the department of health and human resources.
§16-2I-2. Informed consent.
No abortion may be performed in this state except with the voluntary and
informed consent of the female upon whom the abortion is to be performed.
Except in the case of a medical emergency, consent to an abortion is voluntary
and informed if, and only if:
(a) The female is told the following, by telephone or in person, by the
physician or the licensed health care professional to whom the responsibility
has been delegated by the physician who is to perform the abortion at least
twenty-four hours before the abortion:
(1) The particular medical risks associated with the particular abortion
procedure to be employed, including, when medically accurate, the risks of
infection, hemorrhage, danger to subsequent pregnancies and infertility;
(2) The probable gestational age of the embryo or fetus at the time the
abortion is to be performed; and
(3) The medical risks associated with carrying her child to term.
The information required by this subsection may be provided by telephone
without conducting a physical examination or tests of the patient, in which
case the information required to be provided may be based on facts supplied by
the female to the physician or other licensed health care professional to whom
the responsibility has been delegated by the physician and whatever other
relevant information is reasonably available to the physician or other licensed
health care professional to whom the responsibility has been delegated by the
physician. It may not be provided by a tape recording, but must be provided
during a consultation in which the physician or licensed health care
professional to whom the responsibility has been delegated by the physician is
able to ask questions of the female and the female is able to ask questions of
the physician or the licensed health care professional to whom the
responsibility has been delegated by the physician.
If a physical examination, tests or the availability of other information to
the physician or other licensed health care professional to whom the
responsibility has been delegated by the physician subsequently indicate, in
the medical judgment of the physician or the licensed health care professional
to whom the responsibility has been delegated by the physician, a revision of
the information previously supplied to the patient, that revised information
may be communicated to the patient at any time prior to the performance of the
abortion procedure.
Nothing in this section may be construed to preclude provision of required
information in a language understood by the patient through a translator.
(b) The female is informed, by telephone or in person, by the physician
who is to perform the abortion, or by an agent of the physician, at least
twenty-four hours before the abortion procedure:
(1) That medical assistance benefits may be available for prenatal care,
childbirth and neonatal care through governmental or private entities;
(2) That the father, if his identity can be determined, is liable to assist in
the support of her child based upon his ability to pay even in instances in
which the father has offered to pay for the abortion; and
(3) That she has the right to review the printed materials described in section
three of this article, that these materials are available on a state-sponsored
website and the website address.
The physician or an agent of the physician shall orally inform the female that
the materials have been provided by the state of
If the female chooses to view the materials other than on the website, then
they shall either be provided to her at least twenty-four hours before the
abortion or mailed to her at least seventy-two hours before the abortion by
first class mail in an unmarked envelope.
The information required by this subsection may be provided by a tape recording
if provision is made to record or otherwise register specifically whether the
female does or does not choose to have the printed materials given or mailed to
her.
(c) The female shall certify in writing, prior to the abortion, that the
information described in subsections (a) and (b) of this section has been
provided to her and that she has been informed of her opportunity to review the
information referred to in subdivision (3), subsection (b) of this section.
(d) Prior to performing the abortion procedure, the physician who is to perform
the abortion or the physician's agent shall obtain a copy of the executed
certification required by the provisions of subsection (c) of this section.
§16-2I-3. Printed information.
(a) Within ninety days of the effective date of this article, the secretary of
the department of health and human resources shall cause to be published, in
English and in each language which is the primary language of two percent or
more of the state's population, as determined by the most recent decennial
census performed by the U.S. census bureau, and shall cause to be available on
the website provided for in section four of this article the following printed
materials in such a way as to ensure that the information is easily
comprehensible:
(1) Geographically indexed materials designed to inform the reader of public
and private agencies and services available to assist a female through
pregnancy, upon childbirth and while the child is dependent, including adoption
agencies, which shall include a comprehensive list of the agencies available, a
description of the services they offer and a description of the manner,
including telephone numbers. At the option of the secretary of health and human
resources, a twenty-four-hour-a-day telephone number may be established with
the number being published in such a way as to maximize public awareness of its
existence which may be called to obtain a list and description of agencies in
the locality of the caller and of the services they offer; and
(2) Materials designed to inform the female of the probable anatomical and
physiological characteristics of the embryo or fetus at two-week gestational
increments from the time when a female can be known to be pregnant to full
term, including any relevant information on the possibility of the embryo or
fetus's survival and pictures or drawings representing the development of an
embryo or fetus at two-week gestational increments: Provided, That any
such pictures or drawings must contain the dimensions of the embryo or fetus
and must be realistic and appropriate for the stage of pregnancy depicted. The
materials shall be objective, nonjudgmental and designed to convey only
accurate scientific information about the embryo or fetus at the various
gestational ages. The material shall also contain objective information
describing the methods of abortion procedures commonly employed, the medical
risks commonly associated with each procedure, the possible detrimental
psychological effects of abortion and the medical risks commonly associated
with carrying a child to term.
(b) The materials referred to in subsection (a) of this section shall be
printed in a typeface large enough to be clearly legible. The website provided
for in section four of this article shall be maintained at a minimum resolution
of seventy dots per inch. All pictures appearing on the website shall be a
minimum of 200 x 300 pixels. All letters on the website shall be a minimum of
eleven-point font. All information and pictures shall be accessible with an
industry standard browser requiring no additional plug-ins.
(c) The materials required under this section shall be available at no cost
from the department of health and human resources upon request and in
appropriate numbers to any person, facility or hospital.
§16-2I-4. Internet website.
Within ninety days of the effective date of this article, the secretary of the
department of health and human resources shall develop and maintain a stable
internet website to provide the information required to be provided pursuant to
the provisions of section three of this article. No information regarding
persons visiting the website may be collected or maintained. The secretary of
the department of health and human resources shall monitor the website on a
daily basis to prevent and correct tampering.
§16-2I-5. Procedure in case of medical emergency.
When a medical emergency compels the performance of an abortion, the physician
shall inform the female, prior to the abortion if possible, of the medical
indications supporting the physician's judgment that an abortion is necessary
to avert her death or that a twenty-four-hour delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
§16-2I-6. Protection of privacy in court proceedings.
In every civil or criminal proceeding or action brought under this article, the
court shall rule whether the anonymity of any female upon whom an abortion has
been performed or attempted shall be preserved from public disclosure if she
does not give her consent to such disclosure. The court, upon motion or sua
sponte, shall make such a ruling and, upon determining that her anonymity
should be preserved, shall issue orders to the parties, witnesses and counsel
and shall direct the sealing of the record and exclusion of individuals from
courtrooms or hearing rooms to the extent necessary to safeguard her identity
from public disclosure. Each such order shall be accompanied by specific
written findings explaining why the anonymity of the female should be preserved
from public disclosure, why the order is essential to that end, how the order
is narrowly tailored to serve that interest and why no reasonable, less
restrictive alternative exists. In the absence of written consent of the female
upon whom an abortion has been performed or attempted, anyone, other than a
public official, who brings an action under section nine of this article shall
do so under a pseudonym. This section may not be construed to conceal the identity
of the plaintiff or of witnesses from the defendant.
§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.
(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-8. Administrative remedies.
(a) Any person or entity may make a complaint to the licensing board, if any,
of a person whose conduct is regulated by the provisions of this article and
may charge such person with a violation of this article.
(b) Any physician or agent thereof who willfully violates the provisions of
this article is subject to sanctions by the licensing board governing his or her
profession. For the first violation, the licensing board shall issue a written
reprimand to the violator. For the second violation, the licensing board shall
revoke the violator's license.
(c) No penalty or civil liability may be assessed for failure to comply with
paragraph (3), subsection (b), section two of this article or that portion of
subsection (c) of said section requiring a written certification that the
female has been informed of her opportunity to review the information referred
to in paragraph (3), of subsection (b) of said section unless the department of
health and human resources has made the printed materials available at the time
the physician or the licensed health care professional to whom the
responsibility has been delegated by the physician is required to inform the
female of her right to review them.
§16-2I-9. Civil remedies.
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.
§16-2I-10. Severability.
If any one or more provision, section, subsection, sentence, clause, phrase or
word of this article or the application thereof to any person or circumstance
is found to be unconstitutional, the same is hereby declared to be severable
and the balance of this article shall remain effective notwithstanding such
unconstitutionality. The Legislature hereby declares that it would have passed
this article, and each provision, section, subsection, sentence, clause, phrase
or word thereof, irrespective of the fact that any one or more provision,
section, subsection, sentence, clause, phrase or word be declared
unconstitutional.
* * *
CHAPTER 33. INSURANCE.
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ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT. [These provisions have been held to be
unconstitutional and unenforceable.]
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§33-42-3. Definitions.
For purposes of this article:
(1) "Advanced nurse practitioner" means a certified nurse-midwife, or
an advanced nurse practitioner certified to practice in family practice,
women's health (ob/gyn), or primary care adult, geriatric or pediatric
practice, practicing within the lawful scope of that provider's practice.
(2) "Health benefits policy" means any individual or group plan,
policy or contract for health care services issued, delivered, issued for
delivery or renewed in this state by a health care corporation, health
maintenance organization, accident and sickness insurer, fraternal benefit society,
nonprofit hospital service corporation, nonprofit medical service corporation
or similar entity, when the policy or plan covers hospital, medical or surgical
expenses.
(3) "Partial-birth abortion" means an abortion in which the person
performing the abortion partially vaginally delivers a living fetus before
killing the fetus and completing the delivery.
(4) "Physician performing a partial-birth abortion" means a doctor of
medicine or osteopathy legally authorized to practice medicine and surgery in
West Virginia, or any other individual who is legally authorized by the state
to perform abortions: Provided, That any individual who is not a
physician or not otherwise legally authorized by the state to perform
abortions, but who nevertheless directly performs a partial-birth abortion, is
subject to the provisions of this article.
(5) "Vaginally delivers a living fetus before killing the fetus"
means deliberately and intentionally delivering into the vagina a living fetus,
or a substantial portion thereof, for the purpose of performing a procedure
that the physician or person delivering the living fetus knows will kill the
fetus, and kills the fetus.
(6) "Women's health care provider" means an obstetrician/
gynecologist, advanced nurse practitioner certified to practice in women's
health (ob/gyn), certified nurse-midwife or physician assistant-midwife
practicing within the lawful scope of that provider's practice.
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§33-42-8. Partial-birth abortions prohibited; criminal
penalties; exceptions; hearings by state board of medicine.
(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
(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.
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CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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ARTICLE 2. CRIMES AGAINST THE PERSON. [These provisions have been held to be
unconstitutional and unenforceable.]
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§61-2-8. Abortion; penalty.
Any person who shall administer to, or cause to be taken by, a woman, any drug
or other thing, or use any means, with intent to destroy her unborn child, or
to produce abortion or miscarriage, and shall thereby destroy such child, or
produce such abortion or miscarriage, shall be guilty of a felony, and, upon
conviction, shall be confined in the penitentiary not less than three nor more
than ten years; and if such woman die by reason of such abortion performed upon
her, such person shall be guilty of murder. No person, by reason of any act
mentioned in this section, shall be punishable where such act is done in good faith,
with the intention of saving the life of such woman or child.
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[West Virginia allows women
eligible for state medical assistance for general health care to obtain public
funds for an abortion if: (1) medically necessary in light of physical,
emotional, psychological, familial, or age factors relevant to the well-being
of the woman; (2) continuation of the pregnancy will endanger the woman's life;
or (3) the pregnancy was the result of rape or incest.