Understanding West Virginia's Abortion Laws And Their Implications

Abortion in West Virginia is illegal except in cases of rape or incest (under 14 weeks), fatal foetal abnormalities, and when the mother's life is at risk from a pregnancy. In cases of sexual assault, abortion is available up to eight weeks of pregnancy. West Virginia has a law predating Roe v. Wade that prohibits all abortions except those done in good faith with the intention of saving the mother's life. This law is currently subject to a legal challenge.

Exceptions to the abortion ban

West Virginia has enacted a total ban on abortion, prohibiting the procedure at all stages of pregnancy. However, there are a few exceptions to this ban, which are outlined below:

• Non-medically viable fetus: An abortion is permitted if, in the reasonable medical judgment of a licensed medical professional, the fetus is nonviable or nonmedically viable. This means that the fetus cannot survive outside the womb, and the pregnancy must be terminated to save the life of the pregnant individual.
• Ectopic pregnancy: An abortion is allowed if the pregnancy is ectopic, meaning the fertilized egg is implanted outside the uterus, typically in the fallopian tubes. Ectopic pregnancies are often life-threatening for the pregnant person and require immediate medical attention.
• Medical emergency: If a licensed medical professional determines that a medical emergency exists, an abortion may be performed to protect the life or physical health of the pregnant individual.
• Rape or incest: Survivors and victims of rape or incest can obtain abortions up to eight weeks of gestation. However, they must report the sexual assault to law enforcement at least 48 hours before the abortion and provide the report to the licensed medical professional performing the procedure. Minors who are survivors of rape or incest have until 14 weeks of gestation to obtain an abortion. They must either report to law enforcement or seek medical treatment for the assault.

These exceptions to the abortion ban in West Virginia provide a narrow set of circumstances under which abortions are legally permitted. It is important to note that even with these exceptions, West Virginia has one of the most restrictive abortion laws in the country.

Reporting requirements for rape and incest victims

West Virginia's abortion ban includes exceptions for rape and incest victims, but these exceptions are limited to the earlier stages of pregnancy. For adults, the exception applies only within the first eight weeks of pregnancy, while minors, incompetent, or incapacitated adults have until the first 14 weeks of pregnancy.

To be eligible for an abortion under these exceptions, victims must report the sexual assault or incest to a law enforcement agency with jurisdiction to investigate the complaint. This must be done at least 48 hours before the abortion, and a copy of the report must be provided to the licensed medical professional performing the abortion.

In cases of incest involving minors, the agency or person to whom the report is made must also report the incident to the Child Abuse and Neglect Investigations Unit of the West Virginia State Police within 48 hours.

These reporting requirements pose significant challenges for victims seeking abortions under the rape and incest exceptions. The process of reporting to law enforcement, obtaining a copy of the report, and securing an appointment with a physician within the limited timeframe can be difficult, especially for those facing barriers due to age, income, race, or other factors.

It is important to note that the feasibility of accessing abortion care under these exceptions has received less attention in the political debate, and the impact of these requirements on victims' ability to obtain timely care should be carefully considered.

Waiting periods and counselling

West Virginia requires pregnant individuals to undergo a mandatory 24-hour waiting period before they can obtain an abortion. This means that after the individual has expressed their wish to terminate their pregnancy, they must wait for a period of 24 hours before the procedure can be carried out.

In addition to the waiting period, West Virginia law also requires individuals seeking abortions to undergo counselling. The Women's Right To Know Act, passed in 2002, mandates that abortion providers read a counselling script to women seeking an abortion. The script includes details on the week-by-week development of the foetus and a list of potential "psychological risks" associated with the procedure, such as guilt, depression, suicidal thoughts or acts, and "chronic relationship problems". Earlier versions of the script also included warnings of a link between abortion and breast cancer, which has been deemed scientifically unsupported.

The mandatory waiting period and counselling requirements are part of West Virginia's broader abortion laws, which are among the most restrictive in the country. Abortion is illegal in West Virginia except in specific circumstances, such as in the case of a medical emergency, a non-viable foetus, an ectopic pregnancy, or pregnancy resulting from rape or incest (reported to law enforcement) within the first 14 weeks.

Penalties for unlawful abortions

West Virginia's abortion laws impose penalties for unlawful abortions, including criminal and civil sanctions. Here is an overview of the penalties:

Criminal Penalties

According to West Virginia's criminal abortion statute, any person who knowingly and willfully performs or induces an abortion without being a licensed medical professional is guilty of a felony. The law sets out a determinate sentence of imprisonment in a state correctional facility for a term of three to ten years. This penalty also applies to former licensed medical professionals whose licenses have been revoked and who subsequently perform or induce abortions. It is important to note that the law exempts pregnant individuals from criminal liability for any violations related to abortion.

Civil Penalties

In addition to criminal penalties, West Virginia's abortion laws also impose civil penalties for violations. The specific civil penalties are not explicitly stated but are mentioned in conjunction with criminal penalties, indicating their potential severity.

History of Abortion Laws in West Virginia

West Virginia's primary abortion statute, §61-2-8, is a holdover from a Virginia law passed in 1848. This statute was declared unconstitutional by the Fourth Circuit Court of Appeals in 1975 in the case of Doe v. Charleston Area Medical Center. However, in 2022, following the U.S. Supreme Court's decision to overturn Roe v. Wade, West Virginia officials claimed that the state's pre-Roe criminal abortion ban was enforceable. This ban prohibits abortion at all stages of pregnancy, except in specific circumstances, such as a non-viable fetus, ectopic pregnancy, or medical emergency. While providers challenged this ban, and a preliminary injunction was granted, West Virginia enacted a new trigger law in 2023, reinforcing its abortion restrictions.

History of abortion laws in West Virginia

West Virginia's primary abortion statute is a holdover from a Virginia law passed in 1848 or 1849. The statute reads:

> 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 not less than three nor more than ten years; and if such 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.

In 1973, Roe v. Wade ruled 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 1975.

In 2002, West Virginia passed the Women's Right To Know Act, requiring abortion providers to read a counselling script to women seeking an abortion. These materials include details on fetal development by week and a list of "psychological risks" of the procedure, including guilt, depression, suicidal thoughts or acts, and "chronic relationship problems".

In 2015, the West Virginia legislature overrode a veto from governor Earl Ray Tomblin to pass "The Pain-Capable Unborn Child Protection Act", outlawing abortions more than 20 weeks into a pregnancy.

In 2017, HB2002 was enacted, requiring a physician's waiver for parental consent to also be approved by a judge.

In 2018, West Virginia's constitution was amended to expressly ban abortion access. The amendment stated: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."

In 2022, West Virginia passed a near-total abortion ban, with exceptions for medical emergencies, rape or incest (under 14 weeks), and fatal foetal abnormalities. This ban is currently being challenged in court.

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