ANTI-CHOICE LAWS
Abortion Bans
NEAR-TOTAL
West Virginia has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The ban provides that any person who administers any drug or uses any other means intentionally to cause an abortion not necessary to save the woman's life is guilty of a felony and will be imprisoned for three to ten years. W. Va. Code Ann. § 61-2-8 (Previous Statute Enacted 1848; Current Statute Enacted 1882).
A court held that this law is unconstitutional. Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638 (4th Cir. 1975).
AFTER 12 WEEKS
West Virginia's unconstitutional and unenforceable criminal ban outlaws abortions performed as early as twelve weeks. W. Va. Code Ann. §§ 33-42-3(3) to (5) (Enacted 1998), 33-42-8 (Enacted 1998).
A court held that West Virginia's ban is unconstitutional because it lacks an exception to protect women's health and imposes an undue burden on a woman's right to choose. The court issued a permanent injunction prohibiting the law's enforcement. Daniel v. Underwood, 102 F. Supp. 2d 680 (S.D. W. Va. 2000). The U.S. Supreme Court previously held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure places an undue burden on a woman's right to choose and is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000).
West Virginia's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury. Penalties include a fine of $10,000 to $50,000, imprisonment for up to two years, or both. W. Va. Code Ann. §§ 33-42-3(3) to (5) (Enacted 1998), 33-42-8 (Enacted 1998).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until at least 24 hours after her physician or health professional orally by telephone or in person: (1) describes the medical risks associated with the procedure, including, when medically accurate, infection, hemorrhage, danger to subsequent pregnancies, and infertility; (2) informs her of the probable gestational age of the embryo or fetus; and (3) describes the risks of carrying the pregnancy to term.
In addition, at least 24 hours prior to an abortion, the woman must receive a state-mandated lecture by the physician or physician's agent, by telephone or in person, that must include: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support even if he has offered to pay for the abortion; and (3) that she has a right to review state-prepared materials in print or on the state website that describe the fetus or embryo and list agencies that offer alternatives to abortion.
The state-prepared materials must: (1) include a comprehensive list of names and telephone numbers geographically indexed public and private agencies and services available to assist the woman through the pregnancy, upon childbirth, and while the child is dependent, including adoption agencies, or must provide a toll-free, 24-hour telephone number to obtain the list; (2) describe with realistic and appropriate pictures or drawings, the anatomical physiological characteristics of the fetus at two-week increments, including information on the possibility of fetal survival; and (3) describe the common methods of abortion and the medical risks commonly associated with each, the "possible detrimental psychological effects" of abortion, and the medical risks associate with carrying a pregnancy to term.
W. VA. Code Ann. §§ 16-2I-1 to -3 (Enacted 2003).
Refusal to Provide Medical Services
FAMILY PLANNING REFUSAL CLAUSE
West Virginia allows certain individuals or entities to refuse to provide family planning and birth control services.
To whom does the refusal clause apply? State employees.
What does the refusal clause allow? No state employee, who objects on religious grounds, may be required to offer family planning services. The refusal to offer family planning services shall not be the basis for any discipline, discrimination, or loss in pay or benefits.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for family planning and birth control services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
W. Va. Code § 16-2B-4 (Enacted 1966).
HEALTH CARE PROVIDER AND HEALTH CARE INSTITUTION REFUSAL CLAUSES
West Virginia allows certain individuals or entities to refuse to comply with individual health care instructions or decisions based on conscience.
To whom does the refusal clause apply? Health care providers and health care facilities.
What does the refusal clause allow? No health care facility is required to change published policy that is expressly based on sincerely held religious beliefs or sincerely held moral convictions central to the facility's operating principles. A health care provider may refuse to act contrary to the provider's sincerely held religious beliefs or sincerely held moral convictions so long as the provider promptly informs the patient of the decision and the health care facility. The medical power of attorney representative or surrogate decision maker must have responsibility for arranging the transfer of the person to another health care provider. The provider must cooperate in facilitating the transfer.
Does the law require the refusing entity to notify the persons affected? Yes. A health care provider that refuses to comply with an individual health care instruction or health care decision must promptly inform the patient.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? Yes. A health care provider must assist in the transfer of the patient.
W. Va. Code § 16-30-12 (Enacted 2000).
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although West Virginia law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers for whom prescription contraceptive drugs or devices are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may exclude coverage for prescription contraceptive drugs or devices from the health coverage purchased.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. The law broadly defines the term "religious employer" as a non-profit organization or an organization listed in the Official Catholic Directory that holds sincere religious or moral convictions that are central to the employer's operating principles. This exemption allows a broad range of organizations engaged in secular activities to deny women insurance coverage for contraception.
Does the law require the refusing entity to notify the persons affected? No. However, the health insurer must provide written notice to prospective enrollees, listing the contraceptive healthcare services that the employer refuses to cover for religious reasons.
Are there circumstances under which a refusal clause may not be exercised? Yes. The refusal clause may not be exercised to exclude coverage for prescription contraceptive supplies ordered by a healthcare provider for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or to preserve the life or health of an enrollee.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? Yes. A health insurer must make available for purchase at the prevailing group rate a rider that provides prescription contraceptive drugs or devices.
W. Va. Code Ann. §§ 33-16E-1 to -7 (Enacted 2005).
STERILIZATION REFUSAL CLAUSE
West Virginia allows certain individuals or entities to refuse to perform or participate in sterilizing procedures.
To whom does the refusal clause apply? Individuals, hospitals, or medical facilities.
What does the refusal clause allow? No hospital, medical facility, or person shall be required to participate in or admit for the purpose of performing a sterilization. The refusal of a hospital, medical facility, or person to participate in or perform a sterilization shall not be the basis for any legal sanctions, restrictions, or civil liability. The employment of a person who refuses to participate shall not be adversely affected.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilizing procedures? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
W. Va. Code § 16-11-1 (Enacted 1974).
Restrictions on Young Women's Access to Abortion
West Virginia law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 18 who has not graduated high school and is not married or otherwise emancipated.
What is required - parental consent or parental notice? Notice.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? No.
What is the process for providing notification? A young woman may not obtain an abortion until at least 24 hours after actual notice has been delivered directly, in person or by telephone, by the attending physician to one parent. If actual notice is not possible after a reasonable effort, 48 hours constructive notice by certified mail must be given. The 48-hour period begins to run as of the time of mailing.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies in writing that a medical emergency exists such that "continuation of the pregnancy constitutes an immediate threat and grave risk to the life or health" of the pregnant young woman.
May the parental mandate be waived under any other circumstances? Yes, if a physician not associated professionally or financially with the physician proposed to perform the abortion determines that the young woman is mature enough to make the abortion decision independently or that parental notice is not in the minor's best interests. The young woman also may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and sufficiently well-informed to make her own decision or that parental notice is not in her best interests.
Are there other significant requirements under the law? No physician who objects for any reason may be required to perform an abortion on a young woman and no person who objects for any reason may be required to assist in the performance of such an abortion.
Has a court considered the constitutionality of this law? No.
Other information about the law: None.
W. Va. Code Ann. §§ 16-2F-1 to -9 (Enacted 1984).
PRO-CHOICE LAWS
Contraceptive Equity
West Virginia law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for prescription drugs or devices and outpatient services, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs or devices and outpatient contraceptive services.
To which insurance plans does the law apply? Certain individual and group health insurance plans issued by accident and sickness insurers, health maintenance organizations, fraternal benefit societies, hospital service corporations, the West Virginia Public Employees Insurance Agency, health-care service corporations, health service corporations, multiple employee trusts, and multiple employer welfare arrangements.
Does the law provide additional protections for women? Yes. A health insurer is prohibited from: (1) denying an individual coverage because of their use or potential use of contraceptives; (2) providing monetary payments to individuals to encourage them to accept less than the minimum protections under the law; (3) penalizing or reducing or limiting the reimbursement of a health care professional because the professional prescribed contraceptive drugs or devices or provided contraceptive services; or (4) providing incentives to a health care professional to induce the professional to withhold contraceptive drugs, devices, or services from covered individuals.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom prescription contraceptive drugs or devices are contrary to their religious tenets.
What does the refusal clause allow? An employer may exclude or restrict from any health insurance plan benefits for any prescription contraceptive drugs and devices that are contrary to the religious employer's religious tenets.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. The law broadly defines the term "religious employer" as a non-profit organization or an organization listed in the Official Catholic Directory that holds sincere religious or moral convictions that are central to the employer's operating principles. This exemption allows a broad range of organizations engaged in secular activities to deny women insurance coverage for contraception.
Does the law require the refusing entity to notify the persons affected? No. However, the health insurer must provide written notice to prospective enrollees, listing the contraceptive healthcare services that the employer refuses to cover for religious reasons.
Are there circumstances under which a refusal clause may not be exercised? Yes. The refusal clause may not be exercised to exclude coverage for prescription contraceptive supplies ordered by a healthcare provider for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or to preserve the life or health of an enrollee.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? Yes. A health insurer must make available for purchase at the prevailing group rate a rider that provides prescription contraceptive drugs or devices.
W. Va. Code Ann. §§ 33-16E-1 to -7 (Enacted 2005).
Low-Income Women's Access to Abortion
West Virginia allows women eligible for state medical assistance for general health care to obtain public funds for an abortion if: (1) medically necessary in light of physical, emotional, psychological, familial, or age factors relevant to the well-being of the woman; (2) continuation of the pregnancy will endanger the woman's life; or (3) the pregnancy was the result of rape or incest. W. Va. Dep't of Health & Human Resources, Medicaid Program Regulation MA-94-06 (Mar. 24, 1994); Medicaid Program, Physician Certification for Pregnancy Termination (May 4, 1994).
An unconstitutional statute prohibits public funding for abortion unless: (1) the attending physician and an independent physician concur that the procedure is immediately necessary to preserve the woman's life or to prevent irreversible loss of a major bodily function or an equivalent injury; (2) clear clinical medical evidence indicates that the fetus has severe congenital defects or a terminal disease or is not expected to be delivered; or (3) the woman is a victim of incest or reported rape. W. Va. Code Ann. § 9-2-11 (Enacted 1993).
A court held that this statute violates the West Virginia Constitution to the extent that it denies funding for medically necessary abortions. Women's Health Ctr., Inc. v. Panepinto, 446 S.E.2d 658 (W. Va. 1993).
State Constitutional Protection
The West Virginia Constitution protects the right to reproductive choice to a greater extent than the federal Constitution. The West Virginia Supreme Court of Appeals struck down under the state constitution a law limiting state medical assistance for abortion to cases of life endangerment, "grave peril of irreversible loss of a major bodily function," fetal deformity, incest, or reported rape because it did not provide funding for medically necessary abortions. Women's Health Ctr. of W. Va., Inc. v. Panepinto, 446 S.E.2d 658 (W.Va. 1993). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
