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State Laws

West Virginia


Political Information

Executive (Governor)

Anti-choice

Senate

Anti-choice

House

Anti-choice

Abortion-Care Policies

Abortion Providers

No state measure.

Abortion Rights

Near-Total Abortion Ban

West Virginia has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.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


Abortion Bans Throughout Pregnancy: Ban by Week

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.  W. VA. Code Ann. §16-2M-4 (Enacted 2015).  


Abortion Bans Throughout Pregnancy: Procedure Ban

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.


Abortion Bans Throughout Pregnancy: Procedure Ban

West Virginia outlaws the use of a D&E (dilation and evacuation) procedure unless it is necessary to save the woman’s life. The D&E procedure is the most commonly used method for second-trimester abortion. Its illegality would cause women to have to undergo more invasive and potentially more dangerous procedures. This law includes a narrow and inadequate exception to protect a woman’s health. § 61-2-31 (Enacted 2016).   S.B. 10, Reg. Sess. (W. Va. 2016).


Biased Counseling

Biased Counseling

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).


Mandatory Delays

Mandatory Delay

West Virginia requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the abortion procedure. W. VA. Code Ann. §§ 16-2I-1 to -3 (Enacted 2003).


Insurance Coverage for Abortion

No state measure.

Abortion Coverage for Low-Income People

Restricts Low-Income Women’s Access to Abortion

West Virginia prohibits public funding for abortion for women eligible for state medical assistance for general health care unless: (1) there is a medical emergency that so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a delay will create grave peril of irreversible loss of major bodily function or an equivalent injury to the mother, this judgement must be made by two physicians; (2) there is clear clinical medical evidence that the fetus has severe congenital defects or terminal disease or is not expected to be delivered; or (3) the pregnancy was the result of incest or rape when the rape is reported to a law-enforcement agency. (W. Va. Code §9-2-11; West Virginia Bureau for Medical Services, Revised Public Notice Regarding West Virginia Constitutional Amendment 1, Nov. 13, 2018.

This policy is the result of a West Virginia Constitutional Amendment ratified on November 6, 2018, which states: “Nothing in this Constitution secures or protects a right to abortion or requires funding of abortion.” This amendment overrides the pro-choice West Virginia Supreme Court decision in Womens Health Center of West Virginia, Inc. v. Panepinto (1993) that found unconstitutional West Virginia Code §9-2-11, which limited Medicaid funding for abortion to several limited circumstances, because it denied funding for medically necessary abortion care. (446 S.E.2d 658 (W. Va. 1993)).


Young People & Abortion

Parental Notice

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 is not and has never been 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 48 hours after notice has been delivered directly, in person by telephone, or in a letter by the attending physician to one parent.  If notice is given in a letter, it must be sent by certified mail with a return-receipt requested, and must be sent by restricted delivery to assure that the letter is delivered only to the parent.  At least 48 hours must elapse after the delivery of the notice.

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 that "so complicates the medical condition of a pregnant female that it necessitates the immediate abortion of her pregnancy without first determining gestational age to avert her death or for which the delay necessary to determine gestational age will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions."

The physician must add a description of the emergency to the young woman’s medical records, and make a "reasonable effort" to inform her parent in person or by telephone within 24 hours.  Furthermore, the physician must send written notification to the parent within 48 hours, stating that a medical emergency occurred and that the parent may contact the physician for more information and medical records.  The physician is required to keep the return receipt of this notice, or the notice itself it it was returned as undeliverable, in the young woman’s medical records.  

May the parental mandate be waived under any other circumstances?  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?  Yes; the physician must provide a written report to the West Virginia Department of Health and Human Resources within 30 days.  This report must include detailed information about the young woman, including her educational level, previous pregnancies, the reason for waiver of notification (if it was waived), and more.

Has a court considered the constitutionality of this law?  No.

Other information about the law:  None.

W. Va. Code Ann. §§ 16-2M-2, 2F-1 to -9 (Enacted 1984).


Family-Planning Policies

Insurance Coverage & Contraception

Supports Insurance Coverage of Contraception

West Virginia law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception.

What is required?  If a health-insurance plan provides coverage for prescription medication, it must provide coverage for Food and Drug Administration-approved prescription contraception 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 a health-care professional’s reimbursement because he/she prescribed or provided contraception; or (4) providing incentives to a health-care professional to induce him/her to withhold contraception 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 contraception is 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 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 contraception supplies ordered by a health-care provider for reasons other than contraception, 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 contraception.  

W. Va. Code Ann. §§ 33-16E-1 to -7 (Enacted 2005).


Contraception Coverage for Low-Income People

No state measure.

Emergency Contraception

No state measure.

Other Important Issues

Clinic Protections

No state measure.

Refusals & Guarantees

Refusals of Medical Care

FAMILY-PLANNING REFUSAL CLAUSE

West Virginia allows certain individuals to refuse to provide family-planning services.

To whom does the refusal clause apply? State employees.

What does the refusal clause allow? Allows state employees, who object on religious grounds, to refuse to offer family-planning services. The refusal 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 and the health-care facility of the decision. The medical power of attorney representative or surrogate decision maker must have responsibility for arranging the transfer of the person to another provider. The provider must cooperate in facilitating the transfer.

Does the law require the refusing entity to notify the persons affected? Yes. A provider that refuses to comply with an individual health-care instruction or 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 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 medication to provide equitable coverage for contraception, certain employers may require that their plans exclude coverage for contraception.

To whom does the refusal clause apply? Religious employers for whom prescription contraception is contrary to their religious tenets.

What does the refusal clause allow? A religious employer may exclude coverage for prescription contraception 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 health-care 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 contraception ordered by a health-care 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 contraception.  

W. Va. Code Ann. §§ 33-16E-1 to -7 (Enacted 2005).

STERILIZATION REFUSAL CLAUSE

West Virginia allows certain individuals or entities to refuse to provide or participate in sterilization services.

To whom does the refusal clause apply? Individuals, hospitals, or medical facilities.

What does the refusal clause allow? Allows hospitals, medical facilities, and individuals to refuse to to participate in or admit for the purpose of providing sterilization services. The refusal 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).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

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