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West Virginia has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.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.