West Virginia's Abortion Laws: Understanding The Current Landscape

Abortion laws in West Virginia have been subject to much legal debate, especially after the U.S. Supreme Court overruled Roe v. Wade in 2022, which gave states the power to regulate and prohibit abortions. West Virginia has a law dating back to 1848 that prohibits all abortions except those done in good faith to save the mother's life. This law is currently being challenged in court, with a state court granting a preliminary injunction to prevent its enforcement. The state has also passed a near-total abortion ban with some exceptions, including medical emergencies, rape or incest (under 14 weeks), and fatal fetal abnormalities.

Abortion ban exceptions

West Virginia has enacted a near-total ban on abortions, with exceptions for rape, incest, fatal foetal abnormalities, and medical emergencies.

In the case of rape or incest, survivors and victims can obtain abortions up to eight weeks of gestation if they are adults, and up to 14 weeks of gestation if they are minors. However, they must report the incident to law enforcement at least 48 hours before the abortion and provide the report to the licensed medical professional performing the procedure. Minors can also opt to obtain medical treatment for the sexual assault or incest instead of reporting to law enforcement.

In the case of a medical emergency, abortion is permitted if, in the reasonable medical judgment of a licensed medical professional, the embryo or fetus is nonviable, the pregnancy is ectopic, or the mother's life is at risk.

Pre-Roe criminal abortion ban

West Virginia's pre-Roe criminal abortion ban, enacted in the late 1800s, makes abortion illegal and punishable by up to 10 years in prison. While the law criminalizes providers, it has been used to prosecute patients seeking abortion care and their partners. The ban was dormant from 1973, when Roe v. Wade was decided, until 2022, when the U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization.

Following the Supreme Court's decision, West Virginia officials claimed that the state's pre-Roe criminal abortion ban was in effect. However, abortion providers in the state filed a lawsuit to prevent the ban from being enforced, arguing that the pre-Roe ban should be considered void due to the "repeal by implication" doctrine, which holds that an old law becomes unenforceable when a new conflicting law is passed by the legislature.

Under the pre-Roe ban, abortion is only permitted in cases where it is necessary to save the life of the mother or fetus, the fetus is not viable, or in the case of an ectopic pregnancy. The ban also includes exceptions for victims of rape and incest, who can obtain abortions up to eight weeks of gestation if they report to law enforcement first. Minors who are victims of rape or incest have until 14 weeks of gestation to obtain an abortion and must either report to law enforcement or receive medical treatment for the assault.

A state court granted a preliminary injunction, preventing enforcement of the pre-Roe ban. However, West Virginia has enacted a total ban on abortion, with few exceptions, and retains the pre-Roe ban that was found unconstitutional in 1975.

Abortion in cases of rape or incest

In West Virginia, abortion is banned in almost all cases, including in the case of rape or incest. However, there are some limited exceptions to this rule.

In the case of rape or incest, abortions may be performed up to eight weeks of gestation, but only if the patient has first reported the incident to law enforcement at least 48 hours prior to the abortion. In the case of minors or incompetent or incapacitated adults, abortions may be performed up to 14 weeks of gestation, as long as the patient has either reported the incident to law enforcement or obtained medical treatment for the assault or any related injuries from a licensed medical professional or hospital.

These exceptions to the abortion ban in West Virginia were enacted in 2022, following the U.S. Supreme Court's decision to overturn Roe v. Wade.

Abortion providers

In 2002, the West Virginia Legislature passed the Women's Right To Know Act, which required abortion providers to read a counselling script to women seeking an abortion. The script includes details on fetal development and a list of "psychological risks" of the procedure, including guilt, depression, suicidal thoughts or acts, and "chronic relationship problems". Earlier versions of the script also included warnings about a link between abortion and breast cancer, which is not supported by scientific evidence.

In 2015, the West Virginia legislature passed "The Pain-Capable Unborn Child Protection Act", which outlawed abortions more than 20 weeks into a pregnancy. In 2017, HB2002 was enacted, requiring a physician's waiver for a minor to receive an abortion to also be approved by a judge.

On September 13, 2022, West Virginia passed a near-total abortion ban, which came into effect on September 16, 2022, when it was signed into law by Governor Jim Justice. This law prohibits abortion at all stages of pregnancy, except in the case of a "nonmedically viable fetus", an ectopic pregnancy, or a medical emergency. Survivors and victims of rape and incest can obtain abortions up to eight weeks of gestation if they report to law enforcement first. Minors have until 14 weeks of gestation and must report to either law enforcement or get medical treatment for the sexual assault or incest.

Abortion statistics

Abortion in West Virginia has been banned since September 2022, except in cases of rape or incest (up to 14 weeks), fatal foetal abnormalities, and when the mother's life is at risk. The law also allows abortions in the case of a "nonmedically viable fetus", an ectopic pregnancy, or a medical emergency.

The number of legal abortions in West Virginia has been declining over the years, with 1,730 in 2014 and 1,516 in 2015. In 2021, the figure was 1,375, according to the Centers for Disease Control (CDC). The West Virginia Department of Health & Human Resources reported a lower number of abortions in 2022, with 831 taking place in the state. This number includes abortions performed on out-of-state residents but does not include abortions performed on West Virginia residents in other states.

The number of abortion clinics in West Virginia has also been decreasing. There were originally 19 clinics, with 10 in 1982, five in 1992, two in 2014, and just one in 2017. In 2020, the Guttmacher Institute reported that there were no abortion clinics in West Virginia, although there were three facilities that performed abortions.

In 2014, 98% of the counties in West Virginia did not have an abortion clinic, and 90% of women in the state aged 15-44 lived in a county without one. In 2017, only about 20% of all patients at the Women's Health Center of West Virginia sought abortion services. The center saw patients from Ohio and Kentucky, but few from Virginia, which had more clinics. As of July 21, 2017, North Dakota, Wyoming, Mississippi, Louisiana, Kentucky, and West Virginia were the only six states without a Planned Parenthood clinic that offered abortion services.

In 2014, 35% of West Virginians polled approved of legalised abortion in most or all situations. This number increased slightly to 40% in 2022, while 58% said it should be illegal in most or all cases in 2014, and 55% in 2022.

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