West Virginia Pain-Capable Unborn Child Protection Act 2014 (SB 388)

SB 388 would have banned 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 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 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 would have existed 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 would have been 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 would have been 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 would have required 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.

Litigation Fund

The bill would have established the West Virginia Pain-Capable Unborn Child Protection Act Litigation Fund in order to pay for expenses incurred by the Attorney General in defending the law. That fund would have included appropriations made by the Legislature, as well as donations and gifts to the account. This provision did not appear in HB 4588, which is otherwise identical to this bill. (HB 4588 was passed by the West Virginia legislature then vetoed by Gov. Tomblin.)

STATUS

Companion bill to HB 4588, which Gov. Earl Ray Tomblin vetoed in March 2014.

Similar to HB 2364 and SB 487, which both failed to pass in 2013.

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