SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2002 SESSION
025293524Be 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.