Gov. Jim Justice today said he will move swiftly toward a special session to clarify West Virginia’s laws on abortion, although he didn’t specify timing or describe preferred aspects of policy.
The governor’s comments today followed a lawsuit over West Virginia’s law outlawing abortion that dates back to the 1800s, as well as a legal opinion by the Attorney General that concluded that law is viable but would benefit from legislative review.
“I agree wholeheartedly that we need to move faster and we need to move for further and more detailed clarification,” Justice said during a wide-ranging briefing.
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 West Virginia’s law was inactive during the years Roe was in effect, but was not repealed.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.
Besides that, West Virginia legislators have passed a range of laws in the years since Roe to regulate and restrict abortion.
The review by the Attorney General concluded that each of West Virginia’s laws is viable and defensible — but that it would be better if the Legislature would move toward a comprehensive policy.
“The Attorney General stands ready to defend these statutes to their fullest extent. But courts may apply them in unexpected ways,” the office wrote in its legal review.
“For that reason, the Legislature is advised to re-enact a comprehensive framework governing abortions to avoid any potential variances among prohibitions, definitions, scope, exceptions, or otherwise.”
The Attorney General review outlined several big decisions legislators will have to make:
— whether to enforce the state’s abortion law through criminal statutes or whether to weigh more civil enforcement measures that might involve medical licensing rather than imprisonment;
— whether to impose penalties on the provider, the pregnant woman or both;
— whether to maintain a decentralized criminal enforcement system like county prosecutors as opposed to central, statewide enforcement;
— the nature of any exceptions , which might include instances of rape or incest or the early months of pregnancy;
— how to treat abortion drugs that may be available by mail. Should the ability of West Virginia doctors to prescribe these drugs be restricted?
In addition to those considerations, the Attorney General concluded that the Supreme Court’s recent Dobbs ruling indicates any state law would need to reflect consideration of the life of the mother.
“Any state abortion restriction must include an exception for abortions performed to save the pregnant woman’s life,” the Attorney General wrote.
Senate Judiciary Chairman Charles Trump, R-Morgan, agreed that legislators need to weigh a variety of issues surrounding abortion policy in West Virginia.
“Yes, I do think it’s important that the Legislature clarify things,” Trump said today on MetroNews’ “Talkline.”
“Obviously it is an issue that is historically fraught with controversy. People have strong feelings about it on both sides. I always like to be optimistic and think perhaps we can find consensus as to what the law should be. When the citizens are clear about what they want, I like to think the Legislature will reflect that.”
What should the legislature do regarding abortion in West Virginia? Charlie Trump, WV State Senator (R-Morgan), provides his insight on abortion in West Virginia to @HoppyKercheval. WATCH: https://t.co/yCFQ3nDJuy pic.twitter.com/L9jCUk2znj
— MetroNews (@WVMetroNews) June 30, 2022
The criminal abortion 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.
Both the Attorney General and West Virginia’s last abortion clinic agreed that law may be enforceable. Women’s Health of West Virginia announced last week it would halt abortions because of the risk of imprisonment to doctors, nurses and even the patient.
“The governor needs to call a special session of the legislature to repeal this outdated law. Doctors should not be facing imprisonment for providing medical care to their patients,” said Delegate Mike Pushkin, D-Kanawha, who also serves as chairman of the state Democratic Party.
The governor’s comments today described urgency to clarify the law, but included few specifics beyond that. He described the need to discuss timing and policies with legislative leaders.
“I’m telling everyone that I will call a special session, and I will call it very, very, very soon,” Justice said. “I am asking our legislators to all get their stuff in order, get their stuff in order as to what ways they want to go, and absolutely I’m asking their leadership to guide and direct them in every way.”