Gov. Justice adds abortion law update to special session call; House Health originates, passes bill, which heads to Judiciary

Jul. 26—MORGANTOWN — A bill to "clarify and modernize " state abortion law began working its way through the House of Delegates Monday after Gov. Jim Justice threw a surprise twist into the special session he called to reduce personal income taxes.

Shortly after the Senate convened and then quickly recessed at noon, Justice updated his special session call to add abortion legislation. But rather than hand down a proposed bill, Justice let the House introduce one. (And neither the House nor the Senate acted on the income tax bill, HB 301, on Monday).

The House Health Committee took up the originating bill (meaning it came from the committee) that became HB 302.

The bill makes all existing abortion laws — except the 1870 criminal portion updated and enacted in 1870 — no longer effective and creates a new code section to consolidate everything in one spot.

It defines abortion as "the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy."

It prohibits abortions except in the case of a nonmedically viable fetus, an ectopic pregnancy or a medical emergency. A medical emergency would lead to the mother's death or substantial and irreversible physical impairment. An emergency excludes a threat of suicide or self-injury.

Under the bill, abortions do not include miscarriage, stillbirth, use of cell lines from aborted fetuses, medical treatment that results in accidental death or injury of the fetus, in vitro fertilization and federally legal human fetal tissue research.

The bill does not prevent the prescription or sale of contraceptive devices, medicines or drugs. It does prohibit prescribing and dispensing abortifacients via telehealth.

The bill maintains parental notification for unemancipated minors undergoing an abortion. It specifies (an item not clear in the 1870 code) that mothers undergoing an abortion are not subject to criminal penalty.

Delegate Barbara Evans Fleischauer, D-Monongalia, was concerned that the wording of the provision saying an abortion is not "medical treatment provided to patient by a licensed medical professional that results in the accidental death of or unintentional injury or death of a fetus " could be misinterpreted by many to prevent doctors from performing chemotherapy and other lifesaving procedures on a woman in fear of harming the fetus.

In a long discussion, committee counsel told her he doesn't read it that way. But Fleischauer said, "I think we are going to have doctor flight " over fears of license scrutiny and jail time.

Two guests took questions. House Education chair Joe Ellington, who is an obstetrician /gynecologist, was asked if he thought the bill would hinder his giving care to his patients. He said no to that, and no to whether he would be inclined to call a lawyer before making difficult decisions.

Those decisions could be subject to Monday morning quarterbacking, he said. And while he's not thrilled with the criminal provisions, "I think if you're doing this with good intent, it's acceptable. It's not going to stop me from intervening if I have to intervene."

Emily Black took questions from Delegate Danielle Walker, D-Monongalia, and told the story of her abortion. She and her husband wanted a baby and used fertility drugs, she said.

She conceived and the pregnancy progressed normally, until a scan at 18 weeks showed a problem. She had no amniotic fluid, and an ultrasound was not possible, she said. They learned the girl's lungs would never fully develop and she would die in the womb or shortly after birth.

Under those circumstances, she said, carrying the child and going to work would have caused "immeasurable mental torture. I don't know how I would have gotten through that."

So they chose for her to have an abortion at 20 weeks. Black said she's concerned that the bill would have prohibited her abortion and she's concerned about cases where no firm diagnosis is possible.

An amendment by Fleischauer, Walker and others to strike state code 61-2-8, which makes causing an abortion a felony with a prison sentence of three to 10 years failed in a 6-16 vote.

Another amendment — which Fleischauer and Walker co-sponsored — to exempt abortions performed in cases of rape or incest also failed. That vote was 8-14, with committee chair Matthew Rorbach, R-Cabell (also a physician) and another Republican voting yes.

The bill passed 16-6 and went to the House floor Monday evening, where it was read a first time and sent to Judiciary.

Judiciary will take up the bill at 8:30 a.m. on Tuesday, and a public hearing on the bill is set for 9 a..m. Wednesday in the House chamber.

House Finance is set to take up HB 301 at 9 a.m. Tuesday.

Tweet David Beard @dbeardtdp Email dbeard @dominionpost.com