The U.S. Supreme Court has not yet made a final decision on the landmark Roe v Wade case. However, if the court adopts the draft opinion that was leaked to Politico earlier this week, abortion will likely be outlawed in West Virginia.
In the draft opinion, Justice Samuel Alito strikes down the 1973 Roe decision, and the subsequent Planned Parenthood v. Casey ruling in 1992, which guaranteed a right to abortion, and returns the issue to the states.
“We hold that Roe and Casey must be overruled,” Alito writes in the draft. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
West Virginia’s legal prohibition to abortion has a long history. According to West’s Annotated Code of West Virginia, the initial abortion statute was passed by the Virginia Legislature in 1849. It became part of the West Virginia Code in 1868 and was included in the rewrite of the State Code in 1923.
That code section, 61-2-8, has been on the West Virginia books ever since. It says that any person performing an abortion “shall be guilty of a felony, and upon conviction, shall be confined to penitentiary not less than three nor more than ten years.” It does provide an exception if the abortion is necessary for “saving the life” of the woman or the child.
The 1973 Roe decision prohibited the enforcement of the West Virginia law, but it has stayed on the books. Therefore, it is reasonable to believe that if the prohibition is lifted, that section of the code would again apply, making it illegal to perform an abortion.
Since Roe, pro-life legislators have passed a series of laws that weaken abortion rights. For example, in 2015, the Legislature enacted The Pain-Capable Unborn Protection Act. It prohibits abortions—with exceptions—after 20 or 22 weeks, depending how the pregnancy is measured. However, laws such as that would be irrelevant if all abortions become illegal.
The number of abortions in West Virginia has been dropping. According to state Department of Health and Human Resources statistics, 1,001 abortions were performed in 2020, the latest year for which figures are available. That is down from 1,183 the previous year and 1,507 in 2018.
Perhaps the Supreme Court’s final decision will be different from the draft. We won’t know for several months, unless there is another unprecedented leak. But if Roe does fall, it would appear that the century-old abortion prohibition will again be the standard in West Virginia.