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Updated Sept. 16 at 3 p.m.
Gov. Jim Justice has signed House Bill 302 into law, a measure banning abortions, with limited exceptions, in West Virginia.
In his Friday coronavirus briefing, Justice called the signed bill the “protect life” law. He said he wanted the legislature to bring him a bill that contained “reasonable and logical” exceptions.
The law outlaws abortions in West Virginia except in cases when the mother’s life is in danger, or instances of rape and incest that are reported to law enforcement in a timely manner. Any abortion performed must be done so in a hospital within eight weeks for adults and 14 weeks for minors.
“I believe wholeheartedly that it does one thing that is absolutely so important,’ Justice said. “It does protect life.”
When the U.S. Supreme Court struck down Roe v. Wade, it turned abortion legislation back to the states.
West Virginia had a law on the books banning abortion since before it became a state. The original code was enacted in 1849. The state’s lone abortion clinic, the Women’s Health Center of West Virginia, joined a group of reproductive rights activists in quickly filing suit to have that 19th century law enjoined. They said subsequent laws passed addressing abortion exeptions made the old law moot.
Shortly after the federal ruling, state Attorney General Patrick Morrisey issued an opinion on the status of that law.
Morrisey’s opinion stated:
Enacted in 1849 and never repealed since, West Virginia Code § 61-2-8 provides that “[a]ny person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any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,” commits a felony punishable by three to ten years in prison.
The statute covers persons who perform abortions and, at least arguably, women who seek them. The West Virginia statute may “spring back to life” and “regain [its] vitality.”
Challengers have already filed a suit to enjoin this law in Kanawha County Circuit Court.
They argue that the statute has been impliedly repealed, that the doctrine of desuetude applies given the lack of recent enforcement, and that the provisions are unconstitutionally vague. Assuredly, we have strong arguments against this challenge. But the statute would still benefit from the Legislature’s further attention.
On July 18, 2022, a Kanawha County judge granted an injunction denying enforcement of the 19th century law banning abortions. Following the ruling, the Woman’s Health Center of West Virginia announced publicly it would return to providing reproductive health care that includes abortions.
Morrisey appealed the court decision; that case is still pending. Morrisey said the statute would benefit from the legislature’s attention. Justice called the legislature into special session in late July to take up abortion legislation clarification. A bill was introduced and heated debate ensued on the House and Senate floors. The noise from public protests outside the chambers spilled into the Senate gallery. Capitol Police threatened arrests and the loud and angry gallery was cleared by Senate President Craig Blair. The legislature could come to no consensus and adjourned
On September 13, the West Virginia Legislature reconvened in that special session and passed House Bill 302, outlawing abortion in West Virginia, with limited exceptions.
The Senate passed the bill by a vote of 22 to 7 with 5 members absent. The bill then moved to the House of Delegates, which passed it by a vote of 77 to 17 with six members absent. In instances of legal abortion, the procedure is limited to M.D.s and Doctors of Osteopathic Medicine. Doctors who perform an abortion as part of a medical emergency would not be penalized.
There will be no felony penalties for doctors or pregnant women, but the law would make it a felony for anyone who performs an abortion who is not a licensed professional.
Justice said the bulk of the new abortion law is effective from passage. He said any criminal penalties contained in the law will take effect 90 days from Sept. 16, 2022.
West Virginia is the 2nd state, after Indiana, to pass a ban on abortion since the U.S. Supreme Court reversed Roe v. Wade in June.