SEARCH SITE

VIRGINIA LAW PORTAL

SEARCHABLE DATABASES

ACROSS SESSIONS

Developed and maintained by the Division of Legislative Automated Systems.

1995 SESSION

LD3522336
HOUSE BILL NO. 1079
Offered January 25, 1994
A BILL to amend and reenact § 18.2-76 of the Code of Virginia, relating to informed consent for abortion; penalty.
----------

Patrons--Martin, Clement, Cox, Crouch, Dickinson, Forbes, Hamilton, Johnson, McDonnell, Newman, Reynolds, Stump and Thomas; Senators: Benedetti, Colgan, Earley and Holland, R.J.
----------
Referred to Committee for Courts of Justice
----------

Be it enacted by the General Assembly of Virginia:

1. That § 18.2-76 of the Code of Virginia is amended and reenacted as follows:

§18.2-76. Informed consent required.

A. Before performing any abortion or inducing any miscarriage or terminating a pregnancy as provided for in §§ 18.2-72, 18.2-73 or § 18.2-74, the physician shall obtain the informed written consent of the pregnant woman; provided, however, if such . However, if the woman shall be is incompetent as adjudicated by any court of competent jurisdiction or if the physician knows or has good reason to believe that such the woman is incompetent as adjudicated by a court of competent jurisdiction, then only after permission is given in writing by a parent, guardian, committee, or other person standing in loco parentis to such incompetent the woman , may the physician perform such an abortion or otherwise terminate the pregnancy.

The physician shall inform the pregnant woman of the nature of the proposed procedure to be utilized and the risks, if any, in her particular case to her health in terminating or continuing the pregnancy.

B. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:

1. The woman is told the following by the physician who is to perform the abortion, by the referring physician or by the agent of either, at least twenty-four hours before the abortion:

a. The name of the physician who will perform the abortion;

b. 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;

c. The probable gestational age of the unborn child at the time the abortion is to be performed;

d. The medical risks associated with carrying her child to term; and

e. That she may ask questions.

The physician may provide this information by telephone without conducting a physical examination of, or any tests on, the patient, in which event the information required to be supplied may be based upon facts supplied to the physician by the patient, and whatever other relevant information is reasonably available to the physician.

As used in this subsection and subsection D, "medical emergency" means a condition which, in the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy in order to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.

2. The woman is informed, by the physician or his agent, at least twenty-four hours before the abortion:

a. That medical assistance benefits may be available for prenatal care, childbirth and neonatal care;

b. That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion; and

c. That she has the right to review the printed materials described in subsection C of this section. The physician or his agent shall orally inform the woman, either in person or over the telephone, that the materials have been provided by the Commonwealth of Virginia and that they describe the unborn child and list agencies which offer alternatives to abortion. If the woman chooses to view the materials, copies of them shall be furnished to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to the addressee, which means the postal employee can only deliver the mail to the addressee.

3. The woman certifies in writing, prior to the abortion, that (i) the information described in subdivisions 1 and 2 has been furnished her and (ii) she has been informed of her opportunity to review the information referred to in subsection C and, if the information is requested, has reviewed that information. The physician who is to perform the abortion, or his agent, shall be provided with a copy of the certification prior to performing an abortion.

C. On or before October 1, 1994, the Department of Health shall publish and make available in English, Spanish and other languages spoken by a significant number of state residents, printed materials containing the following information in such a way as to ensure that the information is easily comprehensible:

1. Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies. This information 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 and addresses, in which they might be contacted. At the option of the Department of Health, printed materials may be provided including a toll-free, 24-hour-a-day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer.

2. Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including pictures or drawings representing the development of unborn children at two-week gestational increments. However, any such pictures or drawings shall contain the dimensions of the fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall include any relevant information on the possibility of the unborn child's survival and shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The materials shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion, and the medical risks commonly associated with carrying a child to term.

The materials shall be printed in a typeface large enough to be clearly legible and shall be available at no cost from the Department of Health upon request and in appropriate number to any person, facility or hospital.

D. When a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment.

E. Any person upon whom an abortion has been performed without complying with this section, or upon whom such an abortion is attempted, may maintain an action against the person who performed the abortion for treble damages.

F. Compliance with subdivision 2 c of subsection B or that portion of subdivision 3 of subsection B requiring a written certification that the woman has been informed of her opportunity to review the information referred to in subdivision 2 c of subsection B shall not be required until the Department of Health has made the printed materials available at the time the physician or his agent is required to inform the woman of her right to review them.

G. In every civil or criminal proceeding or action brought under this section, the court shall rule whether the anonymity of any woman upon whom an abortion is 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, notwithstanding any other provision of law, 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 woman 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 woman upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under subsection F shall do so under a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.