West Virginia Pain-Capable Unborn Child Protection Act 2015 (HB 2568)

Last updated: Feb 11, 2015


HB 2568 prohibits performing or inducing an abortion unless the physician first makes a determination of the probable post-fertilization age of the fetus, except in cases of a medical emergency.

The bill bans abortions at 20 weeks post-fertilization unless, in the physician’s reasonable medical judgment, an abortion is necessary to avert the woman’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function, other than a psychological condition. The bill does not contain an exception for rape or incest.

The bill states that an abortion does not become necessary if the risk of death or a substantial and irreversible physical impairment of a major bodily function arises from a claim or diagnosis that the woman will engage in conduct that may result in her death or in substantial and irreversible physical impairment of a major bodily function.

The bill also states that an abortion performed after 20 weeks must be performed in a manner that provides the best opportunity for the “unborn child” to survive, unless in the physician’s reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of death or substantial and irreversible physical impairment of a major bodily function than would another method. No such greater risk exists if it is based on a claim or diagnosis that the woman will engage in conduct which will result in her death or in substantial and irreversible physical impairment of a bodily function.

The bill includes legislative findings based on junk science that a fetus can feel pain at 20 weeks.

The purpose of the 20-week ban is to “assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.”

Physician Reporting Requirements

Abortion providers are required to report certain information to the Department of Health, including:

  • if the determination of probable post-fertilization age was made, what was determined, and how it was determined;
  • if a determination of probable post-fertilization age was not made, why not — what was the basis for a determination that a medical emergency existed;
  • if the probable post-fertilization age was 20-weeks or more, the basis for a determination that a medical condition necessitated an immediate abortion to avert the woman’s death or serious injury;
  • the method used for the abortion;
  • age and race of the patient;
  • if the probable post-fertilization age was 20-weeks or more and an abortion was performed, whether the method performed provided the best opportunity for the “unborn child” to survive, and if not, why not.

Reporting Requirements

The bill requires the Department of Health to issue a public report providing statistics compiled from all the reports provided by physicians by June 30 of each year.

STATUS

HB 2568 passed the GOP-controlled House on February 11, 2015 and passed the Senate on February 25. Gov. Tomblin vetoed the bill on March 2. The legislature overrode the veto on March 6.

HB 2568 is similar to HB 2153, which was also introduced in 2015, except HB 2153 contains provisions related to the patient privacy, severability, and a litigation defense fund. HB 2568 does not contain those provisions. HB 2153 also contains more specific physician reporting requirements.

HB 2568 is also similar to HB 4588, which Gov. Earl Ray Tomblin vetoed in March 2014; SB 388, which failed to pass in 2014; and SB 487 and HB 2364, both of which failed to pass in 2014.

 

 


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