Given the make-up of the U.S. Supreme Court and some of the comments and questions by Justices during yesterday’s arguments, it appears the abortion laws of this country and here in West Virginia may be about to change.
Some have speculated the Court will rule more narrowly on the specific Mississippi law which bans abortion after 15 weeks of pregnancy. If the majority upholds that law, then expect West Virginia to attempt to follow suit.
West Virginia’s Legislature is dominated by Republicans who hold supermajorities in both the House and Senate and many of those pro-life members will be anxious to copy the Mississippi law.
In fact, do not be surprised if the Republicans attempt to pass legislation like the Mississippi law during the regular session beginning in January, even though that will be well before the U.S. Supreme Court is expected to release its decision.
If passed, it would be up to opponents to go to court to try to stop the law from going into effect before there is a ruling from the high court.
The U.S. Supreme Court could also make a much more far reaching decision and strike down Roe v. Wade, the 1973 decision that established a constitutional right to abortion. If that happens, abortion would immediately be outlawed in West Virginia.
That is because there is a law on the books (61-2-8) that makes it a crime to perform an abortion. The law states that “any person who shall administer to” an abortion “shall be guilty of a felony” punishable by three to ten years in prison. If a woman dies during an illegal abortion, the abortionist could be convicted of murder.
That law has been blocked since the Roe decision, but if Roe is overturned, the law would be in effect.
Of course, the Supreme Court could also let Roe stand and strike down the Mississippi law. If that happens, nothing changes in West Virginia. The state currently permits abortions, but with limitations.
The Pain-Capable Unborn Child Protection Act of 2015 prohibits abortions, except in the case of a medical emergency or non-medically viable fetus, if “the probable gestational age of the fetus has reached the pain capable gestational age,” which is defined as 20 or more weeks post fertilization or 22 weeks after the last menstrual period.
DHHR figures show that abortions at the 20 week mark are rare. Just seven were performed in 2019, or less than one percent of all abortions. Nearly sixty percent of abortions in 2019 were at eight weeks or less gestational age.
We will not know of the Court’s decision until probably June or July, but you can expect West Virginia and other states to begin positioning themselves legislatively for whatever the outcome.