Justice says he doesn’t want to rush into special session to clarify West Virginia abortion law

Gov. Jim Justice is open to a special session to review West Virginia’s longstanding but inactive abortion law, but the governor said the timing and details would depend on lawyers and legislators.

Gov. Jim Justice

“As to the laws on the books today, I think it’s completely premature to be calling a special session at this point in time until we can get more interpretation from the legal community and more discussion with the Legislature. There will be plenty of time to do exactly that,” he said today on MetroNews’ “Talkline.”

“We’ll get through this, but there needs to be a lot more discussion with the Legislature; there needs to be a lot more discussion with the legal team to see if what we have on the books is adequate or if there is a need to call a special session.”

A majority of US. Supreme Court justices on Friday overturned the Roe vs. Wade conclusions that established a federally-guaranteed right to abortion for the past 50 years.

That decision did not outlaw abortion across the country but instead left the matter to states. West Virginia’s law was inactive during the years Roe was in effect, but was not repealed. The West Virginia law makes performing an abortion a felony punishable by three to 10 years imprisonment.

The law on the books in West Virginia dates back to the earliest days of the state. 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.

The law does not make any exceptions for rape or incest. There are no exceptions for the early weeks of a pregnancy. And it’s not fully clear if the felony would apply strictly to medical professionals who provide abortions or more broadly to a woman seeking an abortion.

Justice was asked today about whether those exceptions should be considered by West Virginia lawmakers.

“I’m not going to get into specifics on exceptions, but there has to be some level where we can have some reasonable discussion,” said Justice, a Republican.

“I absolutely believe without doubt that a life that is unprotected, basically, that we need to protect that life. And I believe with all in me that is a miracle from God, and for us to just snuff it out is not right. It’s just not right. But that doesn’t mean we should just turn our back on any potential exception. That’s a discussion and detail that I’m not going to get into tit-for-tat now.”

State leaders have to balance the need to spend time examining the old law with the urgency to figure out whether it applies right now, who exactly it applies to, and if it provides enough detail to uphold.

In a joint statement released Friday, Senate President Craig Blair and House Speaker Roger Hanshaw, both Republicans, said attorneys are assessing West Virginia code and how it would interact with the Supreme Court decision.

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.

West Virginia’s last abortion provider, just a couple of hours after the Supreme Court’s ruling, announced it would have to stop. 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 state’s 1882 law.

Leaders at the clinic said representatives of the clinic had to call 60 to 70 people who were scheduled for upcoming abortions to tell them that would no longer be possible.

Loree Stark

Loree Stark, the legal director of ACLU West Virginia, said lawyers would need to analyze the 200-page Supreme Court ruling. 

“Because West Virginia legislators have failed to expressly repeal the statute on the books in West Virginia that does criminalize abortion, an archaic statute — it’s abhorrent — what we’re looking at is exploring aggressively all the different avenues that can be taken, reviewing the decision in its entirely, analyzing how it relates to federal law and to the state law here,” Stark said.

Margaret Chapman Pomponio

Updating that old law isn’t politically unrealistic, suggested Margaret Chapman Pomponio, executive director of West Virginia Free.

“We know that there are legislators who do believe that the criminal law goes way too far, both Republicans and Democrats, and we’re calling on them to find the courage, find their compassion and act on it immediately in special session by repealing the code,” she said.

Stephen Baldwin

State Senate Majority Leader Stephen Baldwin, D-Greenbrier, said it’s not clear to him what the Republican supermajorities in the House and Senate want to do.

“I think what people really want to know is what comes next here in West Virginia. And it’s a little bit unclear,” Baldwin said on “Radio Roundtable” on WJLS-AM.

Baldwin referred to discussions already occurring over a possible special session next month about financial issues. On the abortion issue, though, “I’ve also heard there are divisions. Different people within the supermajority want to handle this differently, so how does that play out?

“I think a late-July special session is a possibility. It’s also a possibility that this drags on a little further.”

He said, “I think there’s an argument to be made for taking your time and getting things right, especially when it’s a policy like this that’s affecting folks’ lives and will for many, many years to come.

“The other side of that coin is that there are folks who will be in limbo during that time period. So, a woman has a complicated pregnancy when there’s limbo in West Virginia about what state policy is. What does a doctor do then?”

Mike Pushkin

Delegate Mike Pushkin, recently elected state Democratic Party chairman, expressed skepticism over whether there will be a special session to clarify the old law, even though there are many questions about its application.

“The governor has signaled that he was in favor of calling a special session. I’ve not heard of any dates for a special session. I’m not convinced that that’s what he’s going to do.

“Over the years, I have seen bills introduced with bipartisan support, with Republican lead sponsors, to remove that section of the criminal code. We’ve never been able to get that bill on a committee agenda. If there is a special session, I don’t believe that’s what the Republican supermajorities are going to do.”


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