Abortion Confusion in West Virginia

West Virginia public policy makers need a sense of urgency on abortion.

Last week’s U.S. Supreme Court decision overturning Roe v. Wade and sending the abortion question back to the states has created legal confusion in the Mountain State.

The state’s only abortion clinic, Women’s Health Center of West Virginia in Charleston, announced shortly after the decision that it would stop performing abortions because of an existing law making the procedure a felony.

So the clinic is operating under the assumption, presumably to keep its staff members from going to prison, that abortions are now illegal in West Virginia.

However, two lawyers who have researched the legal history of the abortion fight in the state have brought to my attention a federal court decision from nearly fifty years ago that blocked that law from being enforced.

In 1975, the United States Court of Appeals Fourth Circuit in Jane Doe v. Charleston Area Medical Center ruled that the state’s law against abortion was unconstitutional, and it directed an injunction preventing the law from being enforced. That injunction remains in place today, meaning the law may be unenforceable.

Thirteen states had laws in place that were designed to be “triggered” and take effect automatically, or by quick state action, if Roe was overturned—Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. West Virginia did not adopt a trigger law, so the federal injunction creates uncertainty here.

This confusing situation leaves all sides of the abortion issue in a lurch.

First, the injunction needs to be revisited. An interested party should file with a West Virginia federal court for a declaratory judgement to determine whether the existing statute is enforceable or not.

Second, Attorney General Patrick Morrisey should deliver his opinion as soon as possible—he promised it would be out this week—providing legal clarity and some direction for lawmakers.

Third, Governor Justice and legislative leaders should be working overtime to craft a new abortion bill, build consensus and then call a special session to pass a new law.  That law must provide clarity on a number questions, including what, if any, exceptions will be allowed, whether it will be legal for West Virginia women to obtain abortion drugs approved by the FDA, and whether the state will attempt to prosecute women who travel across state lines to seek an abortion.

The confusion is understandable, but also untenable. The Supreme Court’s ruling put the abortion issue squarely on the shoulders of the states. West Virginia has an old draconian law, a federal injunction may be blocking its enforcement and newer, conflicting laws have been passed since Roe.

There is no easy fix on the emotional issue of abortion, but the lives of West Virginia women and their unborn children are at stake.  So, both sides of the debate should be interested in an expedited and thoughtful resolution.



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