West Virginia to continue abortions following injunction

Judge Tera L. Salango presides from the bench in Kanawha County Circuit Court in Charleston Monday. AP Photo: Leah Willingham

CHARLESTON — On Monday July 18, Judge Tera L. Salango presided over the Kanawha County Circuit Court and granted a preliminary injunction, effectively allowing abortions to continue in the state of West Virginia.

A press release obtained from West Virginias for Life (WVFL) revealed that abortions had ceased in the state of West Virginia following the Supreme Court’s decision to overturn Roe v. Wade, which federally protected a woman’s right to abortion. Since the injunction issued by Judge Salango, abortions can resume in W.Va. The injunction was granted following a suit filed by the West Virginia American Civil Liberties Union and the Women’s Health Center among others. It is noted that the Women’s Health Center located at 510 West Washington Street in Charleston, W.Va. is the only abortion access clinic in the state.

Some are celebrating the decision while others are actively pursuing the opposition. Within the same press release from WVFL, it is noted that Attorney General Patrick Morrisey plans to appeal the decision and ask for a stay with the West Virginia Supreme Court. The press release states, “Abortions will continue in W.Va. until either they grant the stay or until that same court makes a pro-life decision on the entire case or until the legislature enacts pro-life measures.”

Attorney General Morrisey released a Memorandum Concerning the Effects of Dobbs v. Jackson Women’s Health Organization on Wednesday June 29, nearly a week after the United States Supreme Court decision to overturn Roe v. Wade. Within his memorandum, he stated the following.

“Enacted in 1849 and never repealed since, West Virginia Code § 61-2-8 provides that “[a]ny person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any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.

It contains an exception: It does not cover acts “done in good faith, with the intention of saving the life of such woman or child” and “intent is an integral part of the crime of abortion. As a criminal statute, the law must be enforced by the prosecutor for the county in which the abortion occurred.”

Unlike many pre-Roe criminal abortion bans, Section 61-2-8 is not presently subject to an injunction. In 1975, the U.S. Court of Appeals for the Fourth Circuit held that Section 61-2-8 was “unconstitutional beyond question” under Roe. 42 The Fourth Circuit thus ordered the district court to “immediately issue [a preliminary] injunction to require [a Charleston-area] hospital to ignore the unconstitutional state statute.”

Attorney General Morrisey also reveals “other prescriptive statues” and says, “In more recent years, the Legislature has passed a series of abortion-related bills further prescribing what types of abortions could be performed in the state of W.Va. None of these bills have been subject to successful legal challenge, and all are presently in effect.”

The “other prescriptive statutes” include the following:

• Parental Notification of abortions performed on Unemancipated Minors Law

• Pain-capable Unborn Child Protection Act

• Unborn Child Protection from Dismemberment Abortion Act

• Born-Alive Abortion Survivors Protection Act

• Unborn Child with Down Syndrome Protection and Education Act

Attorney General Morrisey’s memorandum is 15 pages in length and can be viewed in its entirety by accessing the following webpage: https://ago.wv.gov/Documents/Final%20Dobbs%20Memorandum.pdf.

To further understand abortion within the state of W.Va., The Record Delta observed state facts about abortion performed by the Guttmacher Institute. This Guttmacher Institute is a research organization that was started in 1968 and works to study, educate and advance sexual and reproductive health and rights. It was founded as part of Planned Parenthood; however, the Guttmacher Institute became independent from Planned Parenthood in 2007. The Guttmacher Institute keeps records of the restrictions on reproductive health that different states have put in place as well as keeping data about how teens are affected by pregnancy and the number of teens who use contraception. Internationally, the Guttmacher Institute is said to use statistical models to give an approximation of abortions in places where the data is not as accessible or the abortions happen outside of the health care setting.

According to the Guttmacher Institute, 862,320 abortions were performed within the United States in 2017. “The U.S. Supreme Court recognized the constitutional right to abortion in the 1973 Roe v. Wade decision and has reaffirmed that right in subsequent decisions.

However, since 2010, the U.S. abortion landscape has grown increasingly restrictive as more states adopt laws hostile to abortion rights. Between January 1, 2011 and July 1, 2019, states enacted 483 new abortion restrictions, and these account for nearly 40% of all abortion restrictions enacted by states in the decades since Roe v. Wade. Some of the most common state-level abortion restrictions are parental notification or consent requirements for minors, limitations on public funding, mandated counseling designed to dissuade individuals from obtaining an abortion, mandated waiting periods before an abortion, and unnecessary and overly burdensome regulations on abortion facilities,” said the Guttmacher Institute.

The Guttmacher Institute also provided the following data regarding abortions within the state of W.Va.

Abortion Incidence

• Approximately 862,320 abortions occurred in the United States in 2017. The resulting abortion rate of 13.5 abortions per 1,000 women of reproductive age (15–44) represents an 8% decrease from the 2014 rate of 14.6.

• In 2017, 1,430 abortions were provided in West Virginia, though not all abortions that occurred in West Virginia were provided to state residents. Some patients may have traveled from other states and some West Virginia residents may have traveled to another state for an abortion. There was a 26% decline in the abortion rate in West Virginia between 2014 and 2017, from 6.0 to 4.4 abortions per 1,000 women of reproductive age. Abortions in West Virginia represent 0.2% of all abortions in the United States.

Where patients obtain abortions

• In 2017, there were 1,587 facilities providing abortion in the United States, representing a 5% decrease from the 1,671 facilities in 2014. Sixteen percent of facilities in 2017 were abortion clinics (i.e., clinics where more than half of all patient visits were for abortion), 35% were nonspecialized clinics, 33% were hospitals and 16% were private physicians’ offices. Sixty percent of all abortions were provided at abortion clinics, 35% at nonspecialized clinics, 3% at hospitals and 1% at physicians’ offices.

• There were three facilities providing abortion in West Virginia in 2017, and one of those were clinics. These numbers represent a 50% decline in clinics from 2014, when there were five abortion-providing facilities overall, of which two were clinics.

• In 2017, 89% of U.S. counties had no clinics providing abortions. Some 38% of reproductive-age women lived in those counties and would have had to travel elsewhere to obtain an abortion. Of patients who had an abortion in 2014, one-third had to travel more than 25 miles one way to reach a facility.

• In 2017, some 98% of West Virginia counties had no clinics that provided abortions and 90% of West Virginia women lived in those counties.

Restrictions on abortion

In West Virginia, the following restrictions on abortion were in effect as of June 28, 2022:

• A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided.

• The use of telemedicine to administer medication abortion is prohibited.

• The parent of a minor must be notified before an abortion is provided.

• Public funding is available for abortion only in cases of life endangerment, rape, incest, or fetal impairment and when the procedure is necessary to prevent long-lasting damage to the patient’s physical health.

• An abortion may be performed at 20 or more weeks post-fertilization (22 weeks after the last menstrual period) only in cases of life endangerment or severely compromised health. This law is based on the assertion, which is inconsistent with scientific evidence and has been rejected by the medical community, that a fetus can feel pain at that point in pregnancy.

• The use of a safe, effective and commonly used method of second trimester abortion is prohibited. Abortions using dilation and evacuation are permitted only in cases of life endangerment or severely compromised physical health.

Also, WV State Code reveals the following regarding penalties on abortion.

§61-2-8. Abortion; penalty.

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.

Continue to follow The Record Delta as we provide coverage and updates on the ongoing Legislative decisions regarding abortion within our state.

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