West Virginia's Abortion Law: Understanding The Complexities

Abortion law in West Virginia is a complex and evolving issue. The state has a history of restrictive abortion laws, with the number of abortion clinics declining over the years. In 2022, West Virginia passed a near-total abortion ban, with some exceptions, including medical emergencies, rape, and incest. This ban was signed into law by Governor Jim Justice, making West Virginia one of the first states to enact such a law following the U.S. Supreme Court's ruling overturning constitutional protection for abortion. The abortion law in West Virginia has sparked debates and protests, with ongoing legal challenges and a dynamic landscape of regulations.

Exemptions to the abortion ban

West Virginia's abortion ban has several exemptions, which allow abortions in certain circumstances. These include:

Non-Medically Viable Foetuses

Abortion is permitted in the case of a non-medically viable foetus. This refers to situations where the foetus is not capable of surviving outside the womb. This exception ensures that pregnancies that are not viable can be terminated.

Ectopic Pregnancies

The law also allows for abortions in the case of ectopic pregnancies. An ectopic pregnancy occurs when a fertilised egg implants and grows outside the uterus, typically in the fallopian tubes. This condition can be life-threatening for the pregnant person and requires immediate medical attention.

Medical Emergencies

Abortions are permitted in cases of medical emergencies, where the pregnancy poses a risk to the physical health or life of the pregnant person. This includes situations where the continuation of the pregnancy could result in serious health complications or death.

Rape and Incest

The abortion ban in West Virginia allows for exemptions in cases of rape or incest, but there are time limits and reporting requirements. Adult survivors of rape or incest can obtain an abortion up to eight weeks of gestation, while minors have until 14 weeks of gestation. To be eligible, survivors must report the assault to law enforcement within 48 hours before the procedure. Minors can report to the police or a doctor, who then must inform the police.

Fatal Foetal Abnormalities

Abortions are also permitted in cases of fatal foetal abnormalities, where the foetus has been diagnosed with a condition that is expected to result in death before or shortly after birth. This exception allows parents to make difficult decisions in situations where the foetus has a poor prognosis.

These exemptions to the abortion ban in West Virginia provide a degree of flexibility in certain exceptional circumstances. However, it is important to note that abortion access in the state is still highly restricted, and these exemptions may not cover all situations where a person may seek an abortion.

West Virginia's primary abortion statute

> Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary for not less than three nor more than ten years; and if such a woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.

> — West Virginia Code, § 61-2-8

In 1973, the Supreme Court of the United States ruled in Roe v. Wade that states could no longer regulate abortion in the first trimester. Following this, the above statute was declared unconstitutional by the Fourth Circuit Court of Appeals in Doe v. Charleston Area Medical Center (1975). However, in 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, and West Virginia passed a near-total abortion ban.

The West Virginia abortion ban includes exemptions for medical emergencies, ectopic pregnancies, and non-viable or non-medically viable fetuses. Additionally, survivors and victims of rape and incest can obtain abortions up to eight weeks of gestation for adults and 14 weeks for minors. However, they must report their assault to law enforcement at least 48 hours before the procedure. Minors can report to the police or a doctor, who must then notify the police.

The Women's Right To Know Act

In 2002, West Virginia passed the Women's Right To Know Act, which requires abortion providers to read a counselling script to women seeking an abortion. The script covers several topics, including:

• Fetal development by week
• "Psychological risks" of abortion, including guilt, depression, suicidal thoughts or acts, and "chronic relationship problems"
• An earlier version of the script also included scientifically unsupported warnings about a link between abortion and breast cancer, as well as labelling the psychological risks as "post-traumatic stress disorder"

It is important to note that West Virginia has a complex history of abortion laws, with a mix of restrictions and exceptions. The state has a near-total abortion ban in place, with specific exemptions for medical emergencies, rape, and incest. These exemptions have varying time limits and reporting requirements. Additionally, West Virginia requires parental consent for minors seeking abortions and has a mandatory waiting period for pregnant individuals.

The Pain-Capable Unborn Child Protection Act

The purpose of the bill is to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain. The bill prohibits the abortion of an unborn child of twenty or more weeks post-fertilization age.

The bill includes legislative findings, definitions, determination of post-fertilization age, reporting requirements, penalties, civil remedies, protection of privacy in court proceedings, and the creation of a litigation defense fund.

The legislative findings section of the bill outlines the medical evidence that indicates that an unborn child is capable of feeling pain by twenty weeks after fertilization. This includes the presence of pain receptors throughout the unborn child's body and the connection of these receptors to the brain by twenty weeks. The bill also notes that fetal anesthesia is routinely administered during surgery on unborn children, which is associated with a decrease in stress hormones compared to when painful stimuli are applied without anesthesia.

The bill defines "abortion" as "the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant." It also defines "fetus" as "an individual organism of the species homo sapiens from fertilization until live birth."

The determination of post-fertilization age section of the bill states that an abortion may not be performed unless the physician has first made a determination of the probable post-fertilization age of the unborn child or relied on such a determination made by another physician.

The reporting section of the bill outlines the information that physicians must report to the Department of Health and Human Resources, including the post-fertilization age, method of abortion, and patient age and race.

The penalties section of the bill states that any person who intentionally or recklessly performs or induces an abortion in violation of the article is guilty of a felony and may be fined or imprisoned.

The civil remedies section of the bill allows any woman upon whom an abortion has been performed in violation of the article to maintain an action against the person who performed the abortion for actual and punitive damages.

The bill also includes a section on protection of privacy in court proceedings, which states that the court shall rule on whether the anonymity of any woman upon whom an abortion has been performed shall be preserved from public disclosure if she does not give her consent.

Finally, the bill creates a special revenue fund, the West Virginia Pain-Capable Unborn Child Protection Act Litigation Fund, to provide funds to pay for any costs and expenses incurred by the State Attorney General in relation to actions surrounding the defense of this law.

Parental consent for minors

West Virginia has strict abortion laws, and minors must navigate a complex set of rules if they are considering an abortion. Firstly, it is important to note that abortion is illegal in West Virginia with only a few exceptions. In the case of minors, survivors of rape or incest have until 14 weeks of gestation to obtain an abortion, and they must report to either law enforcement or seek medical treatment for the assault. Minors must also involve their parents or legal guardians in their decision to have an abortion.

West Virginia requires parental consent for a minor to receive an abortion. This means that one parent or legal guardian must give permission for the procedure. Historically, a minor could avoid this by obtaining a waiver from a physician, but since 2017, HB2002 has been enacted, requiring the physician's waiver to be approved by a judge as well. This is known as a "judicial bypass". This process can be complex and time-consuming, and minors may need to seek legal help to navigate it.

In some circumstances, a minor may not need to involve their parent or guardian. For example, if the minor has experienced abuse, they may be excused from the requirement. Additionally, if the minor does not live with their parents or guardians, and reasonable efforts to notify them have been unsuccessful, a judge may approve the minor's petition without parental notification.

The specific rules around parental consent and notification vary from state to state, and it is essential that minors in West Virginia understand their rights and the options available to them. They can seek help from organisations such as Planned Parenthood, which has staff trained to help minors obtain judicial bypass.

Frequently asked questions