WASHINGTON — EDITOR’S NOTE: The U.S. Supreme Court has now effectively overturned Roe v. Wade in a June 24 opinion. This story was originally published June 16, 2022. The information in this story is based on the draft opinion leaked to Politico in May.
The Supreme Court of the United States is expected to overturn Roe v. Wade by the end of the 2022 session. If the opinion draft leaked to Politico in May is the final opinion of the court, it will be up to individual states whether their residents have the right to an abortion.
Abortion protections and restrictions vary widely state by state. Many already have active laws on the books (time limits, waiting periods, etc.), but some states have dormant or trigger laws that will go into effect as soon as Roe v. Wade is overturned. West Virginia is one of them.
If Roe v. Wade is overturned, would abortions be illegal in West Virginia?
- Dr. Anne Banfield, OBGYN with MedStar Health and Fellow at the American College of Obstetricians and Gynecologists (ACOG)
- West Virginia State Code
- West Virginia State Constitution
Yes, if standing West Virginia law is enforced post-Roe, providing an abortion is a felony except if it is “done in good faith, with the intention of saving the life of such woman or child.”
WHAT WE FOUND
West Virginia is one of a few states with abortion criminalization laws still on the books that were passed before the 1973 Roe v. Wade decision. But even before the Supreme Court acts, West Virginia has several requirements around abortion which makes it less accessible than neighboring states Maryland and Virginia.
Someone seeking an abortion cannot get one after 20 weeks, some form of counseling must be provided, there’s a 24-hour waiting period between the initial consultation and the procedure, and no abortion services (including consultations or prescriptions) can be conducted via telehealth.
Certain specific procedures are banned as well. Dilation and evacuation (D&E) abortions are not currently permitted in West Virginia. D&E is a form of surgical abortion but is also often used to remove the tissue left after a miscarriage occurs.
“This past year, they did pass one more law that is meant to prevent the termination of pregnancies affected by congenital anomalies,” Dr. Anne Banfield explained. She was an OBGYN in West Virginia for 13 years but recently moved to Maryland. “The way it was presented was to prevent termination of pregnancies affected by Down Syndrome. However, the language in that law is fairly broad.”
But if Roe v. Wade is overturned, all of those restrictions are moot, because West Virginia post-Roe reverts back to a law passed pre-Roe–in 1842 to be exact.
“The law that currently exists in West Virginia is actually a holdover from when West Virginia was part of Virginia,” Dr. Banfield said.
West Virginia state code §61-2-8 states in part, “Any person who shall administer…any drug or other thing…to produce abortion or miscarriage…shall be guilty of a felony.” The law ends with an exception in the case that the act is “done in good faith, with the intention of saving the life of such woman or child.”
That felony charge of 3-10 years in prison falls on the person performing the abortion, not the patient.
"A provider might be a physician, it could be a nurse-midwife, it could be a nurse practitioner, it could be a physician assistant," Dr. Banfield explained. "In general, anyone who might provide that care could potentially be penalized."
Overturning Roe v. Wade means the Supreme Court no longer believes that the right to an abortion is enshrined in the United States Constitution. In 2018, West Virginia voters narrowly passed Constitutional Amendment One, which states "nothing in [West Virginia's] Constitution secures or protects a right to abortion or requires the funding of abortion."
Without Roe in place, that 1842 law takes precedent.
“Services for abortion in West Virginia will be severely restricted if not completely restricted,” Dr. Banfield warned West Virginians seeking abortions. “In that case, they are going to need to be looking at their surrounding area for places they will be able to get the kinds of care that they may need, depending on their situation.”
WUSA9 reached out to West Virginia Attorney General Patrick Morrisey asking whether his office intends to fully enforce the state’s abortion restriction if Roe v. Wade is overturned and did not receive a response by the given deadline.