Restrictions

On September 13, 2022, West Virginia began enforcing its total ban on abortion, which prohibits abortion at all stages of pregnancy, except in the case of a  “nonmedically viable fetus”, ectopic pregnancy, or medical emergency.^[1]W. Va. Code §16-2R-3. Survivors and victims of rape and incest can obtain abortions up to eight weeks of gestation, but only if they report to law enforcement first.^[2]Id. Survivors and victims who are minors have until 14 weeks of gestation to obtain an abortion and must report to either law enforcement or get medical treatment for the sexual assault or incest.^[3]Id.

Following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization^[4]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019)., West Virginia officials claimed the state’s 1849 pre-Roe criminal abortion ban was in effect.^[5]Att’y Gen. Patrick Morrisey, “Memorandum Concerning the Effects of Dobbs V. Jackson Women’s Health Organization“ (W. Va. June 29, 2022). However, providers challenged the ban^[6]Women’s Health Ctr. of West Virginia, et al. v. Miller et al., 2022 WL 2526988 (W. Va. Cir. Ct. June 29, 2022) (complaint). and a state court granted a preliminary injunction, preventing enforcement of the pre-Roe ban. ^[7]Women’s Health Ctr. of West Virginia, et al. v. Miller et al., No. 22-C-556 (W. Va. Cir. Ct. Jul. 20, 2022), available at … Continue reading

West Virginia has not repealed other laws related to abortion. West Virginia law prohibits D&X and D&E procedures,^[8]Id. §§ 33-42-3(3), 33–42–8; id. § 16-2O-1; Daniel v. Underwood, 102 F. Supp. 2d 680 (S.D.W. Va. 2000). and abortions sought because of a disability diagnosis.^[9]W. VA. CODE §16-2Q-1. Pregnant people must undergo a mandatory twenty-four-hour waiting period; biased counseling; an ultrasound offer^[10]W. VA. CODE §§ 16-2I-1 to 16-2I-5.; and prohibitions on public funding.^[11]W. VA. CONST. art. VI, § 57; W. VA. BUREAU FOR MEDICAL SERV., Revised Public Notice Regarding West Virginia Constitutional Amendment 1 (Nov. 13, 2018) West Virginia continues to require that parents or legal guardian are notified about a minor’s abortion;^[12]W. VA. CODE § 16-2F-3. alternatively, a judge can approve a minor’s petition without parental notification.^[13]Id. § 16-2F-4. A law enacted in 2023 would allow these bans and restrictions to take effect immediately if the state’s total ban is judicially determined to be unconstitutional.^[14]W. VA. CODE § 16-2R-9.

In 2020, the West Virginia governor exploited the COVID-19 pandemic in an attempt to ban abortion care, issuing an executive order^[15]Gov. Jim Justice, Executive Order 16-20 (March 31, 2020) that purported to suspend procedures deemed “elective” by the state. This order contradicted major medical groups in the United States and around the world, which agree that abortion is essential and time sensitive health care.^[16]See Joint Statement on Abortion Access During the COVID-19 Outbreak, AM. COLL. OBSTETRICS & GYNECOLOGY (Mar. 18, 2020); Disaster Risk Management for Health, Sexual and Reproductive Health, WORLD … Continue reading The governor issued a subsequent executive order that allowed abortion care to continue.^[17]Gov. Jim Justice, Executive Order 30-20 (April 27, 2020).

West Virginia law requires abortion providers to submit reports to the state^[18]Id. § 16-2I-7. and still restricts providers from using telemedicine for the provision of abortion care.^[19]Id. § 30-14-12d(g)(5). Providers who violate West Virginia’s abortion bans may face civil and criminal penalties.^[20]Id. §§ 16-2R-7; id. § 33-42-8.

State Protections

West Virginia law does not include express constitutional or statutory protections for abortion.^[21]W. VA. CONST. art. VI, § 57. To the contrary, in November 2018, West Virginia’s voters approved a ballot initiative that added the following language to the state constitution: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”^[22]Id.

Post-Roe Prohibitions

In 2022, West Virginia enacted a total abortion ban, with few exceptions^[23]W. Va. Code §16-2R-3., and West Virginia retains a pre-Roe ban that the Fourth Circuit found unconstitutional in 1975. ^[24]Id. § 61-2-8, invalidated by Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638 (4th Cir. 1975). Providers have challenged the pre-Roe ban and asked for declaratory and injunctive relief preventing enforcement.^[25]Women’s Health Ctr. of West Virginia, et al. v. Miller et al., 2022 WL 2526988 (W. Va. Cir. Ct. June 29, 2022) (complaint). On July 18, 2022, a state court granted a preliminary injunction, blocking enforcement of the pre-Roe ban. ^[26]Women’s Health Ctr. of West Virginia, et al. v. Miller et al., No. 22-C-556 (W. Va. Cir. Ct. Jul. 20, 2022), available at … Continue reading West Virginia enacted a new trigger ban in 2023, establishing that if the state’s total ban was determined to be unconstitutional, the state’s twenty-week ban, D&E ban, disability reason ban, informed consent, and parental notification requirements, would all take effect.^[27]W. VA. CODE §16-2R-9.

Conclusion

Now that the Supreme Court has overturned Roe, West Virginia has enacted a total ban on abortion and claims its pre-Roe criminal abortion ban is enforceable although the ban is currently enjoined.