Abortion policy is in the Legislature’s court, but what and when remain uncertain

A judge who halted West Virginia’s felony abortion law said she did so, in part, after assessing that West Virginia’s Legislature hadn’t made its intent clear aside from decades of passively leaving the unenforced law on the books.

Gov. Jim Justice today said he’ll call lawmakers together to clarify the law once they are ready.

Legislative leaders have not yet signaled a timetable or preferred specifics on policy, with rank-and-file members wondering what the plan is. West Virginia Democratic leaders blasted the governor for “failing to act.”

Meanwhile, West Virginia’s only abortion clinic is making plans to resume procedures next week: “We have started booking abortion patients for next week subject to the court’s injunction,” said a spokeswoman for Women’s Health Center of West Virginia.

And the state Attorney General has asked the judge to stay her ruling. The Attorney General filed a separate stay request to the state Supreme Court, asking for a ruling by 9 a.m. Wednesday.

The U.S. Supreme Court’s recent ruling on abortion overturned Roe vs. Wade and left abortion policy to the states, but West Virginia’s path is not yet clear.

Tera Salango

Kanawha Circuit Judge Tera Salango ordered an injunction this week on the state’s law from the 1800s that imposes three to 10 years of incarceration for abortion, saying it is in conflict with more recent law and that it lacks enough definition to enforce effectively.

The logical resolution, Salango said, is policy through the current Legislature.

“I will not put words in the Legislature’s mouth; however, if the Legislature intended for the criminal abortion statute to be in full force, it was free to pass a trigger law similar to a number of other states,” she said.

“The Legislature chose not to do so. If the Legislature wishes to resolve the conflict with repealing or amending various code sections, that is certainly in their purview and would appear free to do so under the recent Dobbs decision. It simply does not matter whether you are pro-choice or pro-life, every citizen in this state has a right to clearly know the laws under which they are expected to live.”

Jim Justice

Gov. Jim Justice, a Republican, today said “we need to have a special session to clean up some of the old, old, ancient laws and everything that are outdated to say the very least.

“We need to do that, and we will do that, as soon as I get the thumbs up that the Legislature is really ready. We’re trying to give them some rope and everything to get themselves ready and to do all the work that they have to do because there are so many sensitive issues and everything.”

The West Virginia Democratic Party today said Justice is dropping the ball.

Danielle Walker

“Jim Justice’s failure to call the Legislature back into session to repeal section 61-2-8 is a supreme dereliction of his duty as governor and an act of callous indifference that puts patients’ lives at risk,” stated Delegate Danielle Walker of Morgantown, who is also vice chairwoman of the Democratic Party.

“We are simply asking the Governor, in the name of human decency, to do what he said he would do three weeks ago. Call the legislature back in session and repeal the law he described as ancient and archaic. Since legislative leadership lacks the courage to call themselves back, it’s up to the Governor to act. Leaders lead, Governor Justice.”

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.

A legal review by the state Attorney General concluded that “An 1849 law criminalizing the provision of abortion for a health-care provider, and arguably the woman, is on the books and enforceable. So are many other abortion-related statutes.

“However, the West Virginia Legislature is strongly advised to amend the laws in our State to provide for clear prohibitions on abortion that are consistent with Dobbs.”

The legal review outlined several big decisions for legislators to consider:

— 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.

Brandon Steele

Delegate Brandon Steele, R-Raleigh, today criticized the Attorney General for publicly critiquing the old law as in need of review even while defending it in court.

“This was set up by the Attorney General’s misplaced and misguided legal memorandum from a few weeks back, the 15-page memo where he, himself, called the law ‘vague,'” Steele, the House Government Organization Committee chairman, said today on MetroNews’ “Talkline.”

Attorney General Patrick Morrisey responded that his office correctly assessed abortion laws in West Virginia. “We will defend the unborn children of our state and ask Delegate Steele to focus on the same,” Morrisey stated.

Steele said it’s clear the Legislature has to act. Some of the issues, he said, are whether the law indicates life begins at conception and possible exceptions for rape or incest.

“We’re in a situation where we’re going to have to go in,” he said. “I think we could go in rather quickly and take care of it.”

Delegate Pat McGeehan, R-Hancock, in an interview, emphasized the societal value of motherhood and human life. “Effectively court decisions like this one, it transforms motherhood into just another choice,” McGeehan said.

“I think it’s time right now for the Legislature to act as soon as possible to reaffirm what we have historically affirmed prior to the Roe vs. Wade decision getting in the way, that motherhood is something to be protected and the life of her children must be protected.”

McGeehan said the simplest action for the Legislature would be a resolution affirming that its majority stands by the criminal statute.

“I don’t think there’s anything wrong with the statute that’s already in code,” he said. “It clearly affirms that life is to be protected in the same way that we protect life against murder.”

McGeehan said action on abortion policy should take precedence over other issues like tax changes that have been discussed for a special session. “The rubber meets the road. It’s go time,” he said.

Delegate Barbara Fleischauer, D-Monongalia, today said it’s unclear what consensus exists among her legislative colleagues.

“Normally when we have a special session, they don’t like to bring us down unless there’s a consensus. And I think it will be hard to reach a consensus between the House and the Senate and the governor on these issues. They’re really tricky, and even the Attorney General said they’re tricky,” she said on “Talk of the Town” on WAJR Radio.

Fleischauer said the worst outcome would be keeping the felony abortion law in effect, saying it would force some women to give birth against their will.

But, she said, it’s uncertain what her fellow legislators will want to do.

“It’s really hard to predict what’s next,” she said.

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