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West Virginia

Abortion Bans

West Virginia has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.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 10 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).

West Virginia outlaws abortion after 20 weeks without an adequate exception to protect women's health or for cases in which the pregnancy was the result of rape or incest.  The law makes abortion after 20 weeks a criminal act, unless necessary to prevent a substantial permanent impairment of the life or physical health of the woman or in the case of a medically futile pregnancy.  H.B. 2568, 82nd Leg., 1st Reg. Sess. (W. Va. 2015).

West Virginia's unconstitutional and unenforceable criminal ban outlaws abortion procedures provided as early as 12 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 has no 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 had no 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 any abortion procedure that falls within a broad definition a felony punishable by a a fine of $10,000 to $50,000, imprisonment for up to two years, or both.  The law has an exception if an abortion is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury.  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 certain second-trimester abortion procedures and has no 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.

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