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As Supreme Court overturns Roe, West Virginia has a law on the books outlawing abortion

The U.S. Supreme Court today overturned the fundamental right to abortion that had been established 50 years ago in the Roe vs. Wade decision, sending policies over abortion back to states like West Virginia, where a ban dating back to the late 1800s is still on the books.

Joe Manchin

Senator Joe Manchin, D-W.Va., said he would support Congress acting to codify the policies that had been in effect under Roe vs. Wade. House Speaker Nancy Pelosi, D-Calif., made a similar call today.

“As a Catholic, I was raised pro-life and will always consider myself pro-life. But I have come to accept that my definition of pro-life may not be someone else’s definition of pro-life. I believe that exceptions should be made in instances of rape, incest and when the life of the mother is in jeopardy,” Manchin stated today.

“But let me be clear, I support legislation that would codify the rights Roe v. Wade previously protected. I am hopeful Democrats and Republicans will come together to put forward a piece of legislation that would do just that.”

Shelley Moore Capito

Senator Shelley Moore Capito, R-W.Va., released a statement acknowledging that abortion policy now goes to individual states.

“By overturning Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court has returned this issue to the states to make their own determination. I support this decision, and I would expect West Virginia to support this decision as well.

West Virginia already has a law that would outlaw abortion. It goes back more than a century but has been unenforced for decades.

West Virginia voters have also approved a state constitutional amendment to specify that “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”

Those two aspects of law place West Virginia among the states most likely to ban abortion now that the hotly-anticipated Supreme Court ruling has left the matter to states, according to The Guttmacher Institute, a research organization focused on advancing reproductive health policy.

Gov. Jim Justice

“I applaud the Supreme Court’s courageous decision today. I’ve said many times that I very proudly stand for life and I am rock-solid against abortion, and I believe that every human life is a miracle worth protecting,” said Gov. Jim Justice today.

The law on the books in West Virginia says administering an abortion is a felony punishable by three to 10 years imprisonment. It does not include exceptions in instances of rape or incest.

The law says:

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.

That law dates back to the earliest days of the state and has not been in use for the past half-century. So it was not immediately clear whether it would need revision.

“I will not hesitate to call a special session after consulting with the Legislature and my legal team if clarification in our laws needs to be made,” Justice stated today.

Patrick Morrisey

West Virginia Attorney General Patrick Morrisey, a Republican, said his office will examine the ruling and produce its own legal analysis of the effect on state law.

“I’m going to issue a legal opinion articulating some of the challenges and the ways the Legislature and the governor can deal with this because I want to save as many lives as humanly possible,” he said. “We know that because that law has not been on the books for a long time, a lot of people are going to challenge it.

“It’s my goal to address any of the attacks and make sure there’s a law on the books that’s going to stand that we’re going to be defending, so we’re going to be providing that counsel to the governor and the Legislature in the upcoming days. The goal will be to save as many lives as legally and humanly possible.”

Until now, abortion has been legal in all 50 states, including West Virginia. That will certainly change with the Supreme Court ruling that came out today. Some states governments have been moving to affirm abortion rights while others are likely to place restrictions.

Kayla Kessinger

Delegate Kayla Kessinger, R-Fayette, said state officials have attorneys examining what the effect of West Virginia’s current law would be.

“Now when it comes to what the next steps are, whether or not our existing pre-Roe ban is going to be triggered because of this decision, we have attorneys looking into this right now to see what are the next steps that West Virginia needs to take to make sure every single human life is accepted and valued.

“For me, I believe this is the moment where the rubber meets the road. This is the moment where everybody who has championed the sanctity of life for the last decade has to come together and make sure we are doing everything we can to support moms and babies,” she said, advocating for support of pregnancy resource centers.

Delegate Kayla Young, D-Kanawha, expressed disappointment over the Supreme Court ruling. Young said West Virginia’s law should be revised to remove its felony penalty.

“I’d like to see the criminal code taken out, that Roe is now a felony in West Virginia as of 10 o’clock this morning,” Young said. “The governor has already said he’s going to call a special session, and that’s what I expect to happen.”

But Young suggested the legislative outcome might be more specific restrictions on abortion. “I expect the code to get a lot harsher sentencing,” she said.

“I know a majority of West Virginians do want exceptions for rape, incest, life of the mother and right now we don’t have that,” she said.

Margaret Chapman Pomponio

Margaret Chapman Pomponio, executive director of West Virginia Free, said West Virginia’s current law is outdated, originating from Virginia’s code in the late 1800s.

“We are calling on the Legislature to repeal the old criminal code around abortion that was put into place before West Virginia was even a state. I mean, we’re talking draconian, nasty stuff. It needs to be repealed,” she said.

“We need the entire section repealed. It should have been repealed a long time ago, and now’s the time. I do believe there are a lot of goodhearted Republicans in the West Virginia Legislature who don’t want to see us go back to the 19th century.”

Leaders at the Women’s Health Center of West Virginia expressed concern that prosecutors could begin trying to immediately enforce an abortion ban based on the 1882 law.

“Roe has never been enough, but in states like West Virginia, it was the only thing protecting abortion access,” said Katie Quinonez, executive director of Women’s Health Center of West Virginia.

“Due to the inaction of our lawmakers to repeal the crime of abortion in our state code, it is impossible for our clinic to provide abortion. This will force West Virginians to travel hundreds to thousands of miles away from their home to access healthcare and will harm marginalized communities the most.”

Mark Brennan

Bishop Mark Brennan of the Diocese of Wheeling-Charleston shared his support for the decision, noting Catholics should “continue to foster a genuine respect for all human life throughout our country.”

“The diocese continues to offer positive help to pregnant women in our state. We have outreach centers for pregnant women, counseling services to help women respect and cherish their unborn child, and outreach centers that provide parenting classes, baby clothes, diapers, and formula for mothers in need,” he said.

“This respect cannot be just for babies in the womb and their mothers. So too must we respect children in schools, those who attend churches, even those who just go to grocery stores to buy food—that they may do these things without threat of violence against them. We must show our respect for all life by working to drive out racism and gun violence from our midst.”

Brennan previously called on the state Legislature to hold a special session to ban certain firearms. The push stemmed from a shooting at a Texas elementary school in which 19 children and two adults died.

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