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2002 SESSION

025293524
HOUSE BILL NO. 1154
FLOOR AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by Senator Reynolds
on March 7, 2002)
(Patron Prior to Substitute--Delegate Marshall)
A BILL to amend and reenact §§ 18.2-74.1 and 18.2-74.2 of the Code of Virginia, relating to partial birth abortion; penalty.

Be it enacted by the General Assembly of Virginia:

1. That §§ 18.2-74.1 and 18.2-74.2 of the Code of Virginia are amended and reenacted as follows:

§ 18.2-74.1. Abortion, etc., when necessary to save life of woman.

In the event it is necessary for a licensed physician to terminate a human pregnancy or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman in order to save her life, in the opinion of the physician so performing the abortion or causing the miscarriage, §§ 18.2-71, 18.2-73 and, 18.2-74 and 18.2-74.2 shall not be applicable.

§ 18.2-74.2. Partial birth abortion prohibited.

A. Notwithstanding the provisions of §§ 18.2-72, 18.2-73 and 18.2-74, a physician shall not knowingly perform a partial birth abortion that is not unless in the opinion of the physician the procedure is necessary to save the life or preserve the health of a mother. A violation of this section shall be punishable as a Class 1 misdemeanor.

B. A physician charged with an offense under this section may seek a review pursuant to subsection E before a medical necessity advisory committee on whether the partial birth abortion was necessary to save the life of a mother. In any case in which a physician charged with an offense under this section intends to seek a review before a medical necessity advisory committee he, or his counsel, shall give notice in writing to the attorney for the Commonwealth, at least twenty-one days prior to his trial, of his intention to seek such a review. The defendant shall be entitled to a continuance of his criminal trial proceedings for the review to occur. The report and findings of the committee shall be admissible upon motion of either party at the trial of the defendant. In the event that such a notice of intention to seek review before a medical necessity advisory committee is not given to the attorney for the Commonwealth as described above, the review is waived by the defendant. A waiver of review in the general district court shall constitute a waiver of review in any subsequent proceedings, regardless of the court in which such subsequent proceedings may be held. A defendant may have no more than one review; and an appeal, trial de novo or retrial shall not entitle the defendant to request a second review.

C. A woman upon whom a partial birth abortion is performed may not be prosecuted under this section for a conspiracy to violate this section or for any other offense arising out of the performance of a partial birth abortion.

DC. As used in this section:

"Partial birth abortion" means an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery. the medical procedure commonly known as "intact dilatation and extraction," "intact D & X" or "D & X," which contains the following procedures performed in the following sequence:

1. Deliberate dilatation of the cervix,

2. Instrumental conversion of the fetus to a footling breech,

3. Breech extraction of the body excepting the head, and

4. Partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

"Partial birth abortion" shall not include any of the following abortion procedures: the dilation and evacuation procedure involving dismemberment prior to removal from the body of the woman, the suction curettage procedure, or the suction aspiration procedure.

"Physician" means a doctor of medicine or osteopathy licensed and legally authorized by the Board of Medicine to practice medicine and surgery, or any other individual legally authorized to perform abortions.

E. Upon written request of a physician made pursuant to subsection B for a review by a medical necessity advisory committee, the Clerk of the Supreme Court of Virginia shall promptly appoint a medical necessity advisory committee consisting of three impartial practitioners licensed and actively practicing medicine in the Commonwealth, no more than one of whom has limited his practice to obstetrics and gynecology. No more than one such practitioner shall have his principal office in the city or county in which the alleged violation of this section occurred. Such appointments shall be made from a list of practitioners submitted to the Clerk by the Board of Medicine from nominations made by the deans of the medical schools located in the Commonwealth. The Clerk shall designate one member of the committee as chairman. No person appointed to serve on a medical malpractice review panel which is investigating a complaint involving the defendant shall be eligible to serve on a medical necessity advisory committee investigating a complaint under review by the medical malpractice review panel.

The function of a medical necessity advisory committee appointed pursuant to this section shall be to examine whether the performance of a partial birth abortion was necessary to save the life of a mother. The committee shall conduct a review of the pertinent medical records and provide an opportunity for the attorney for the Commonwealth and the physician and his counsel to meet with the committee and present additional information to the committee.

When a dispute regarding the information to be considered by the committee is not resolved by the committee, the chairman of the committee shall submit the issue to the court in which the criminal case is pending for resolution. Proceedings of the committee shall be in accordance with rules established by the committee. Testimony before the committee need not be recorded.

At the conclusion of its review, but in no event later than forty days after its appointment, the committee shall submit all documentary evidence and records to the court, accompanied by a report containing a summary of the evidence and one of the following findings:

1. The evidence presented to the committee supports a conclusion that the partial birth abortion was necessary to save the life of the mother; or

2. The evidence presented to the committee supports a conclusion that the partial birth abortion was not necessary to save the life of the mother.

An individual member of the committee may include in the report his separate views if he is unable to agree with the committee's report. Upon receipt, the court shall promptly transmit to all counsel of record copies of the report and other materials submitted to the court by the committee.

No member of the medical necessity advisory committee may be called as a witness in the criminal proceeding. A member of the committee shall have immunity from civil liability resulting from any communication, finding, opinion or conclusion made in the course of his duties as a member of the committee unless such person acted in bad faith or with malicious intent.

FD. If any one or more subsections, provisions, clauses, phrases or words of this section 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 section shall remain effective.

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