Bill Text: WV HB5524 | 2024 | Regular Session | Introduced
Bill Title: Regulating and restricting the shipment and receipt of abortion-inducing drugs and paraphernalia
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2024-02-08 - To House Health and Human Resources [HB5524 Detail]
Download: West_Virginia-2024-HB5524-Introduced.html
WEST virginia legislature
2024 regular session
Introduced
House Bill 5524
By Delegate Coop-Gonzalez
Introduced February 08, 2024; Referred to the Committee on Health and Human Resources then the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2S-1, §16-2S-2, §16-2S-3, §16-2S-4, §16-2S-5, §16-2S-6, §16-2S-7, §16-2S-8, and §16-2S-9, all relating to regulating and restricting the shipment and receipt of abortion-inducing drugs and abortion-related paraphernalia; ensuring compliance with 18 U.S.C. §§1461–1462; establishing a private right of action for those injured or killed by the use of abortion-inducing drugs; establishing venue rules for the private right of action; defining qualified Medicaid providers; establishing a fee-shifting regime in abortion litigation; including a short title; providing definitions; and addressing applicability, construction, jurisdiction, sovereign immunity, remedies, and severability.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2S. ABORTION-INDUCING DRUGS And Abortion Paraphernalia.
§16-2S-1. Legislative findings.
The Legislature finds that:
(a) It is a federal crime to mail abortion-inducing drugs or abortion-related paraphernalia or to receive them in the mail, punishable by five years imprisonment. See 18 U.S.C. § 1461. It is also a federal crime to transport or receive abortion-inducing drugs or abortion-related paraphernalia in interstate or foreign commerce. See 18 U.S.C. § 1462(c). These statutes are fully enforceable now that Roe v. Wade, 410 U.S. 113 (1973), has been overruled, and the statute of limitations for each of these crimes is five years.
(b) Violations of 18 U.S.C. §§ 1461–1462 are predicate offenses under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), which exposes abortion-pill distribution networks and their donors to civil RICO liability as well as criminal prosecution as a racketeering enterprise. See 18 U.S.C. § 1961 (defining "racketeering activity" to include violations of 18 U.S.C. § 1461–1462).
(c) The State of West Virginia calls upon state and federal prosecutors to investigate and prosecute every abortion-pill distribution network under federal racketeering laws, as well as 18 U.S.C. § 1461–1462.
§16-2S-2. Definitions.
(a) For purposes of this article:
"Abortion" means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a patient known to be pregnant and with intent to cause the death and expulsion or removal of an embryo or a fetus. This term does not include the terms "intrauterine fetal demise" or "stillbirth" or "miscarriage" as defined in this section.
"Abortion-inducing drugs" includes mifepristone, misoprostol, and any drug or medication that is used to terminate the life of an unborn child. The term does not include:
(1) Plan B, morning-after pills, intrauterine devices, or any other type of contraception or emergency contraception; or
(2) Drugs or medications that are possessed or distributed for a purpose that does not include the termination of a pregnancy, such as misoprostol that is possessed or distributed for the purpose of treating stomach ulcers.
"Abortion provider" means a person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity that performs elective abortions;
"Affiliate" means a person or entity who enters into with another person or entity a legal relationship created or governed by at least one written instrument, including a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a license, that demonstrates:
(1) Common ownership, management, or control between the parties to the relationship;
(2) A franchise granted by the person or entity to the affiliate; or
(3) The granting or extension of a license or other agreement authorizing the affiliate to use the other person's or entity's brand name, trademark, service mark, or other registered identification mark.
"Elective abortion" means any abortion other than those performed or induced in response to a medical emergency;
"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions;
"Intrauterine fetal demise" or "stillbirth" means the unintended or spontaneous loss of a fetus after the 19th week of pregnancy.
"Medical emergency" means a condition or circumstance that so complicates the medical condition of a patient as to necessitate an abortion to avert serious risk of the patient's death or serious risk of substantial life-threatening physical impairment of a major bodily function, not including psychological or emotional conditions. This term includes a circumstance in which it is necessary to terminate a pregnancy of one or more fetuses to preserve the life of another fetus or fetuses. A condition is not deemed a medical emergency if based on a claim or diagnosis that the patient intends or may engage in conduct which results in the patient's death or in substantial and irreversible physical impairment of a major bodily function.
"Miscarriage" means the unintended or spontaneous loss of an embryo or a fetus before the 20th week of pregnancy. This term includes the medical terms "spontaneous abortion," "missed abortion," and "incomplete abortion".
§16-2S-3. Shipment or Receipt of Abortion-Related Paraphernalia.
(a) Except as provided by subsection (b), a person commits the crime of shipment or receipt of abortion-related paraphernalia if that person, with the intent to aid or abet another person's elective abortion:
(1) Violates or attempts to violate 18 U.S.C. § 1461 by using the mails for the mailing, carriage in the mails, or delivery of:
(A) Any article or thing designed, adapted, or intended for producing abortion; or
(B) Any article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion;
(2) Violates or attempts to violate 18 U.S.C. § 1462 by:
(A) Using any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce of any drug, medicine, article, or thing designed, adapted, or intended for producing abortion; or
(B) Knowingly taking or receiving from such express company or other common carrier or interactive computer service, any matter or thing described in subsection (a)(2)(A); or
(3) Knowingly sends or transports, or attempts to send or transport, any drug or device intended to aid or abet an elective abortion into or within the state of West Virginia.
(b) Any person who commits the crime of shipment or receipt of abortion-related paraphernalia is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate sentence of not less than three nor more than 10 years.
(c) The Attorney General shall have a cause of action to sue any person who commits or attempts or intends to commit the crime of shipment or receipt of abortion-related materials and shall be entitled to recover:
(1) Declaratory and injunctive relief;
(2) Civil penalties of not less than $1,000,000 for each of the defendant’s violations or attempted violations of subsection (A); and
(3) Costs and reasonable attorney's fees.
(d) Under no circumstance may a pregnant or formerly pregnant woman who violates this section for the sole purpose of facilitating her own abortion be subject to prosecution or penalty under this section.
(e) Notwithstanding any other law, this section shall apply extraterritorially, but only to the maximum extent permitted by the Constitution of the United States and the Constitution of West Virginia.
(f) Notwithstanding any other law, the law of West Virginia shall apply to any prosecution or civil action brought under this Section, to the maximum extent permitted by the Constitution of the United States and the Constitution of West Virginia.
§16-2S-4. Liability for Manufacturers and Distributors of Abortion-Inducing Drugs.
(a) Notwithstanding any other law, any person who manufactures, mails, distributes, transports, delivers, or provides abortion-inducing drugs, or who aids or abets the manufacture, distribution, transportation, delivery, or provision of abortion-inducing drugs, shall be strictly, absolutely, and jointly and severally liable for wrongful death of any unborn child or pregnant woman who dies from the use of abortion-inducing drugs, and for any personal injuries suffered by any unborn child or pregnant woman from the use of abortion-inducing drugs: Provided, That no lawsuit may be brought under this section against a provider or user of an interactive computer service if such a lawsuit would be preempted by 47 U.S.C. § 230(c).
(b) It is an affirmative defense if a person sued under this section:
(1) Was unaware that it was engaged in the conduct described in subsection (a); and
(2) Took every reasonable precaution to ensure that it would not manufacture, mail, distribute, transport, deliver, or provide abortion-inducing drugs, or aid or abet such acts.
The defendant has the burden of proving an affirmative defense under this Subsection by a preponderance of the evidence.
(c) Notwithstanding any other law, if a plaintiff who brings suit under this section is unable to identify the specific manufacturer of the drug that caused the death or injury, then liability shall be apportioned among all manufacturers of abortion-inducing drugs in proportion to each manufacturer's share of the market for abortion-inducing drugs, in accordance with Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980).
(d) Notwithstanding any other law, a person may bring an action under this section not later than the tenth anniversary of the date the cause of action accrues.
(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:
(1) Ignorance or mistake of law;
(2) A defendant's belief that the requirements or provisions of this article are unconstitutional or were unconstitutional;
(3) A defendant's reliance on any court decision that has been vacated, reversed, or overruled on appeal or by a subsequent court, even if that court decision had not been vacated, reversed, or overruled when the cause of action accrued;
(4) A defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;
(5) A defendant’s reliance on any federal statute, agency rule or action, or treaty that has been repealed, superseded, or declared invalid or unconstitutional, even if that federal statute, agency rule or action, or treaty had not been repealed, superseded, or declared invalid or unconstitutional when the cause of action accrued;
(6) Non-mutual issue preclusion or non-mutual claim preclusion;
(7) The consent of the plaintiff or the unborn child's mother to the abortion, or the consent of one or both of the parents of the unborn child’s mother to the abortion, or the consent of the legal guardian of the unborn child’s mother to the abortion;
(8) Contributory or comparative negligence; or
(9) Assumption of risk.
(f) Any waiver or purported waiver of the right to sue under this section shall be void as against public policy and shall not be enforceable in any court.
(g) This section may not be construed to impose liability on speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the Supreme Court of the United States’ interpretation of the Fourteenth Amendment of the United States Constitution, or by Article 3-7 of the West Virginia Constitution, as interpreted by the Supreme Court of Appeals of West Virginia.
(h) Notwithstanding any other law, a civil action under this section may not be brought:
(1) Against the woman who used or sought to obtain abortion-inducing drugs to abort or attempt to abort her unborn child;
(2) Against any person that acted at the behest of federal agencies, contractors, or employees that are carrying out duties under federal law, if the imposition of liability would violate the doctrines of preemption or intergovernmental immunity; or
(3) By any person who impregnated the woman who used abortion-inducing drugs through an act of rape, sexual assault, or incest, or by anyone who acts in concert or participation with such a person.
(i) Notwithstanding any other law, including West Virginia Code § 56-3-33, the courts of this state shall have personal jurisdiction over any defendant sued under this section to the maximum extent permitted by the Fourteenth Amendment to the United States Constitution.
(j) Notwithstanding any other law, the law of West Virginia shall apply to any abortion performed, induced, or attempted by or upon a resident or citizen of West Virginia, regardless of where that abortion or attempted abortion occurs, and to any civil action brought under this Section, to the maximum extent permitted by the Constitution of the United States and the Constitution of West Virginia.
(k) Notwithstanding any other law, a civil action under this section shall not be subject to any provision of the Equal Protection for Religion Act, codified at West Virginia Code § 35-1A-1, et seq.
(l) Notwithstanding any other law, including W. Va. R. Civ. P. 23, a civil action under this section may not be litigated on behalf of a plaintiff class or a defendant class, and no court may certify a class under W. Va. R. Civ. P. 23 in any civil action brought under this section.
§16-2S-5. Venue.
(a) Notwithstanding any other law, including §56-1-1 of this code, a civil action brought under §16-2S-4 of this code may be brought in:
(1) The county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) The county of residence for any one of the natural person defendants at the time the cause of action accrued;
(3) The county of the principal office in this state of any one of the defendants that is not a natural person; or
(4) The county of residence for the claimant if the claimant is a natural person residing in this state.
(b) If a civil action is brought under §16-2S-4 of this code in any one of the venues described by Subsection (a), then the action may not be transferred to a different venue without the written consent of all parties.
(c) Any contractual choice-of-forum provision that purports to require a civil action brought under §16-2S-4 of this code to be litigated in a particular forum shall be void as against public policy and may not be enforced in any state or federal court.
§16-2S-6. Medicaid Providers.
(a) Notwithstanding any other law, the following persons or entities may not be deemed "qualified" providers under the state's Medicaid program, as that term is used in section 1902(a)(23) of the Social Security Act:
(1) Any person or entity that, with the intent to aid or abet another person's elective abortion, violates 18 U.S.C. § 1461 by using the mails for the mailing, carriage in the mails, or delivery of:
(A) Any article or thing designed, adapted, or intended for producing an elective abortion; or
(B) Any article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing an elective abortion;
(2) Any person or entity that, with the intent to aid or abet another person's elective abortion, violates 18 U.S.C. § 1462 by:
(A) Using any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce of any drug, medicine, article, or thing designed, adapted, or intended for producing an elective abortion; or
(B) Knowingly taking or receiving from such express company or other common carrier or interactive computer service, any matter or thing described in subsection (a)(2)(A).
(3) Any person or entity that performs or participates in an elective abortion in violation of the laws of this state, or in violation of the laws of the United States or the law of any state, local, or foreign jurisdiction;
(4) Any abortion provider or affiliate of an abortion provider; and
(5) Any affiliate or a person or entity described in paragraphs (1) or (2).
(b) Notwithstanding any other law, the state and each of its officers and employees shall have sovereign immunity in any lawsuit brought to restrain them from enforcing subsection (a), as it impossible for a state or any state official to "violate" the federal Medicaid Act under Ex parte Young, 209 U.S. 123 (1908). The Medicaid Act does not impose any legal requirements on states that accept federal funds. It merely offers federal reimbursement to states that establish and administer Medicaid programs that accord with federal reimbursement criteria and allows the Secretary of Health and Human Services to decide (in his or her discretion) whether to withhold some or all of federal money from state Medicaid programs that depart from these federal reimbursement criteria. See 42 U.S.C. § 1396c. That a State may lose some federal money for its policy choices does not make those choices unlawful.
(c) Notwithstanding any other law, no attorney representing the state, its political subdivisions, or any officer, employee, or agent of this state or a political subdivision is authorized or permitted to waive the immunity described in Subsection (b) or take any action that would result in a waiver of that immunity, and any such action or purported waiver shall be regarded as a legal nullity and an ultra vires act.
§16-2S-7. Fee Shifting.
(a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, its political subdivision, any officer, employee, or agent of the state or its political subdivisions, or any person in this state from enforcing or bringing suit to enforce any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts abortion or that limits taxpayer funding for individuals or entities that perform or promote abortions, in any state or federal court, or that represents any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and reasonable attorney's fees of the prevailing party, including the costs and reasonable attorney's fees that the prevailing party incurs in its efforts to recover costs and fees.
(b) For purposes of this section, a party is considered a prevailing party if a state or federal court:
(1) Dismisses any claim or cause of action brought against it that seeks the declaratory or injunctive relief described by Subsection (a), regardless of the reason for the dismissal; or
(2) Enters judgment in the party's favor on any such claim or cause of action.
(c) A prevailing party may recover costs and attorney’s fees under this section only to the extent that those costs and attorney’s fees were incurred while defending claims or causes of action on which the party prevailed.
(d) Regardless of whether a prevailing party sought to recover costs or attorney's fees in the underlying action, a prevailing party under this section may bring a civil action to recover costs and attorney's fees against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief described by Subsection (a) not later than the third anniversary of the date on which, as applicable:
(1) The dismissal or judgment described by Subsection (b) becomes final on the conclusion of appellate review; or
(2) The time for seeking appellate review expires.
(e) It is not a defense to an action brought under Subsection (d) that:
(1) A prevailing party under this section failed to seek recovery of costs or attorney's fees in the underlying action;
(2) The court in the underlying action declined to recognize or enforce the requirements of this section; or
(3) The court in the underlying action held that any provisions of this section are invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.
(f) Notwithstanding any other law, including §56-1-1 of this code, a civil action brought under Subsection (d) may be brought in:
(1) The county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) The county of residence for any one of the natural person defendants at the time the cause of action accrued;
(3) The county of the principal office in this state of any one of the defendants that is not a natural person; or
(4) The county of residence for the claimant if the claimant is a natural person residing in this state.
(g) If a civil action is brought under Subsection (d) in any one of the venues described by Subsection (f), then the action may not be transferred to a different venue without the written consent of all parties.
(h) Any contractual choice-of-forum provision that purports to require a civil action under Subsection (d) to be litigated in another forum shall be void as against public policy and may not be enforced in any state or federal court.
§16-2S-8. Immunity From Suit and Limits on State-Court Jurisdiction.
(a) Notwithstanding any other law, the state and each of its officers and employees shall have sovereign immunity, its political subdivisions and each of their officers and employees shall have sovereign or governmental immunity, as appropriate, and each officer and employee of this state or a political subdivision shall have official immunity (as well as sovereign or governmental immunity, as appropriate) in any action, claim, counterclaim, or any type of legal or equitable action that challenges the validity of any provision or application of this article, on constitutional grounds or otherwise, or that seeks to prevent or enjoin the state, its political subdivisions, or any officer, employee, or agent of this state or a political subdivision from enforcing any provision or application of this article, or from hearing, adjudicating, or docketing a civil action brought under §16-2S-4 of this code, unless that immunity has been abrogated or preempted by federal law in a manner consistent with the Constitution of the United States. The sovereign immunity conferred by this section upon the state and each of its officers and employees includes the constitutional sovereign immunity recognized by the Supreme Court of the United States in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, 527 U.S. 706 (1999), which applies in both state and federal court and which may not be abrogated by Congress or by any state or federal court except pursuant to congressional legislation authorized by section 5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article I, or by Congress’s powers to raise and support Armies and to provide and maintain a Navy, or by any other ground that might be recognized by the Supreme Court of the United States.
(b) Notwithstanding any other law, the immunities conferred by Subsection (a) shall apply in every court, both state and federal, and in every adjudicative proceeding of any type whatsoever.
(c) Notwithstanding any other law, no provision of state law may be construed to waive or abrogate an immunity described in Subsection (a) unless it expressly waives or abrogates immunity with specific reference to this section.
(d) Notwithstanding any other law, no attorney representing the state, its political subdivisions, or any officer, employee, or agent of this state or a political subdivision is authorized or permitted to waive an immunity described in Subsection (a) or take any action that would result in a waiver of that immunity, and any such action or purported waiver shall be regarded as a legal nullity and an ultra vires act.
(e) Notwithstanding any other law, including Chapter 53 and Chapter 55 of this code, as well as §51-1-3 of this code, no court of this state may award declaratory or injunctive relief, or any type of stay or writ, including a writ of prohibition, that would pronounce any provision or application of this article invalid or unconstitutional, or that would restrain the state, its political subdivisions, any officer, employee, or agent of this state or a political subdivision, or any person from enforcing any provision or application of this article, or from hearing, adjudicating, docketing, or filing a civil action brought under §16-2S-4 of this code, and no court of this state shall have jurisdiction to consider any action, claim, or counterclaim that seeks such relief, unless such jurisdiction is compelled by the Constitution of West Virginia, and no such action, claim, or counterclaim may be litigated on behalf of a plaintiff or defendant class, notwithstanding W. Va. R. Civ. P. 23, and no court may certify a plaintiff or defendant class in any action seeking the relief described in this Subsection.
(f) Nothing in this section or article shall be construed to prevent a litigant from asserting the invalidity or unconstitutionality of any provision or application of this article as a defense to any action, claim, or counterclaim brought against that litigant.
(g) Notwithstanding any other law, any judicial relief issued by a court of this state that disregards the immunities conferred by Subsection (a), or the limitations on jurisdiction and relief imposed by Subsection (e), shall be regarded as a legal nullity because it was issued by a court without jurisdiction, and may not be enforced or obeyed by any officer, employee, or agent of this state or a political subdivision, judicial or otherwise.
(h) Notwithstanding any other law, any writ, injunction, or declaratory judgment issued by a court of this state that purports to restrain the state, its political subdivisions, any officer, employee, or agent of this state or a political subdivision, or any person from hearing, adjudicating, docketing, or filing a civil action brought under §16-2S-4 of this code shall be regarded as a legal nullity and a violation of the Due Process Clause of the Fourteenth Amendment, and may not be enforced or obeyed by any officer, employee, or agent of this state or a political subdivision, judicial or otherwise.
(i) Notwithstanding any other law, any officer, employee, or agent of this state or a political subdivision, judicial or otherwise, who issues, enforces, or obeys a writ, injunction, or declaratory judgment described in Subsection (h) shall be subject to suit by any person who is prevented from or delayed in bringing a civil action under §16-2S-4 of this code, and a claimant who prevails in an action brought under this section shall recover:
(1) Injunctive relief;
(2) Compensatory damages;
(3) Punitive damages of not less than $100,000; and
(4) Costs and reasonable attorney's fees.
(j) Notwithstanding any other law, any person who violates Subsections (e) or (h):
(1) May not assert and shall not be entitled to any type of immunity defense, including sovereign immunity, governmental immunity, official immunity, or judicial immunity;
(2) May not and shall not be indemnified for any award of damages or costs and attorneys' fees entered against them, or for the costs of their legal defense; and
(3) May not and shall not receive or obtain legal representation from the attorney general of this state in any action brought under Subsection (i).
(k) Notwithstanding any other law, any person who sues and seeks any writ, injunction, or declaratory judgment that would restrain any person from hearing, adjudicating, docketing, or filing a civil action brought under §16-2S-4 of this code, shall pay the costs and attorneys' fees of the person sued. A person may bring a civil action to recover these costs and attorneys' fees in state or federal court. It shall not be defense to a civil action brought under this Subsection that:
(1) The plaintiff failed to seek recovery of costs or attorney's fees in the underlying action;
(2) The court in the underlying action declined to recognize or enforce the requirements of this Section; or
(3) The court in the underlying action held that any provisions of this Section are invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.
(l) Notwithstanding any other law, including W. Va. R. Civ. P. 23, no court may certify a plaintiff or defendant class with respect to any claim that seeks declaratory or injunctive relief, or any type of writ, that would pronounce any provision or application of this article invalid or unconstitutional, or that would restrain the state, its political subdivisions, any officer, employee, or agent of this state or a political subdivision, or any person from enforcing any provision or application of this article, or from hearing, adjudicating, docketing, or filing a civil action brought under §16-2S-4 of this code.
§16-2S-9. Severability.
(a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute the Supreme Court of the United States held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this chapter, and every application of the provisions in this chapter to every person, group of persons, or circumstances, are severable from each other.
(b) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid, preempted, or unconstitutional, for any reason whatsoever, then the remaining applications of that provision to all other persons and circumstances shall be severed and preserved and shall remain in effect. All constitutionally valid applications of the provisions in this chapter shall be severed from any applications that a court finds to be invalid, preempted, or unconstitutional, because it is the legislature's intent and priority that every single valid application of every statutory provision be allowed to stand alone.
(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of the provisions of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter were to be declared invalid, preempted, or unconstitutional.
(d) If any provision of this chapter is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force, consistent with the severability requirements of Subsections (a), (b), and (c).
(e) No court may decline to enforce the severability requirements of Subsections (a), (b), (c), and (d) on the ground that severance would "rewrite" the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision is never rewriting a statute or engaging in legislative or lawmaking activity, as the statute continues to contain the same words as before the court's decision. A judicial injunction or declaration of unconstitutionality:
(1) Is nothing more than an edict prohibiting enforcement of the disputed statute against the named parties to that lawsuit, which may subsequently be vacated by a later court if that court has a different understanding of the requirements of the West Virginia Constitution or United States Constitution;
(2) Is not a formal amendment of the language in a statute; and
(3) No more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.
(f) If any state or federal court disregards any of the severability requirements in Subsections (a), (b), (c), (d), or (e), and declares or finds any provision of this chapter facially invalid, preempted, or unconstitutional, when there are discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating federal law or the federal or state constitutions, then that provision shall be interpreted, as a matter of state law, as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate federal law or the federal or state constitutions, and every court shall adopt this saving construction of that provision until the court ruling that pronounced the provision facially invalid, preempted, or unconstitutional is vacated or overruled.
NOTE: The purpose of this bill relates generally to regulating and restricting the shipment and receipt of abortion-inducing drugs and abortion-related paraphernalia. The bill ensures compliance with 18 U.S.C. § 1461–1462. The bill establishes a private right of action for those injured or killed by the use of abortion-inducing drugs. The bill establishes venue rules for the private right of action. The bill defines qualified Medicaid providers. The bill establishes a fee-shifting regime in abortion litigation. The bill includes a short title. The bill provides for definitions. Finally, the bill addresses applicability, construction, jurisdiction, sovereign immunity, remedies, and severability.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
