Gov. Jim Justice announced abortion policy will be added to the call for the legislative special session that was already starting today, although the governor did not yet provide a bill or state specific policies to be considered.
West Virginia’s criminal abortion statute dates back to the 1800s and is the current subject of a court battle. The U.S. Supreme Court’s recent decision that rolled back national abortion rights sent the issue to state governments.
“From the moment the Supreme Court announced their decision in Dobbs, I said that I would not hesitate to call a Special Session once I heard from our Legislative leaders that they had done their due diligence and were ready to act,” Justice stated today. “As I have said many times, I very proudly stand for life and I believe that every human life is a miracle worth protecting.”
The updated call only says the special session now will “clarify and modernize the abortion-related laws currently existing as part of the West Virginia Code, to ensure a coherent, comprehensive framework governing abortions and attendant family services and support to expectant mothers to provide the citizens of this state more certainty in the application of such laws.”
The special session originally just focused on one topic, whether to trim West Virginia’s personal income tax by about 10 percent.
But when the Republican majority in the House of Delegates gathered in a private caucus to discuss that matter, some members pressed to take up abortion too, saying that issue is more urgent than taxes.
House Minority Leader Doug Skaff, D-Kanawha, expressed frustration today that such a serious issue would be added to the agenda at the late hour.
“And that’s how we view women of West Virginia, by giving them complete disrespect and just adding something to the call at the last minute, when just Friday our governor said we need to do a thought-out, comprehensive plan to make sure we do this right?
“So at the last hour, you’re just going to add something to the call that affects women’s rights and women’s choice? Whether you’re pro life or pro choice, this isn’t something you just throw out there in negotiations as a pawn to get an income tax reduction. This should be its own special session; we should consider well-thought-out abortion issues.”
West Virginia’s law that imposed incarceration of three to 10 years for abortion had been unenforced in the half-century following the Roe vs. Wade ruling that established the right to abortion at the federal level.
With the newer Supreme Court ruling, the Women’s Health Center of West Virginia stopped performing abortions over worries of prosecution.
Kanawha Circuit Judge Tera Salango last week ordered an injunction to halt enforcement of the old law, saying it is vague and that the Legislature hasn’t made its intent clear.
“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,” Salango said.
The Attorney General’s Office has asked for a stay of the judge’s order while also pursuing an appeal to the state Supreme Court. Justices on the high court have not yet responded to the request for stay.
With the injunction, the Women’s Health Center said it would notify patients that abortion procedures would resume this week.
The law on the books in West Virginia dates back to the earliest days of the state. It describes three to 10 years imprisonment for abortion. There is an exception for the life of the mother “in good faith.”
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 the plaintiffs in the legal challenge to the law have concluded that it could be interpreted for prosecuting not only medical providers but also pregnant women and those who provide assistance in getting an abortion.
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.