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Old West Virginia law making abortion a felony could be revived in post-Roe decision

Dennis Westover protested Tuesday outside the Women’s Health Center of West Virginia in Charleston, the state’s only abortion clinic, the morning after the news broke about a draft opinion from the U.S. Supreme Court that recommending ending Roe v. Wade protections for abortion. (Photo by Steven Allen Adams)

CHARLESTON — While much attention was paid last week to the leak of a draft decision written by a U.S. Supreme Court justice that could throw out a nearly 50-year-old landmark decision that recognized a women’s right to an abortion, an old West Virginia law still on the books could immediately criminalize abortions.

Politico broke a story Monday night, obtaining a copy of a draft decision written in February by Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Organization case the high court heard in December dealing with a Mississippi law banning abortions after 15 weeks.

According to the draft majority opinion, which is not the final word or where a majority of justices stand today, Alito wrote that two previous landmark Supreme Court decisions — 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey — should be struck down.

“We hold that Roe and Casey must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

A decision from the court in the Dobbs case was expected as early as June, but the leak of the draft gave the public a rare view into the deliberations of the court. Assuming that the votes remain for overturning Roe and Casey and last week’s leak doesn’t pressure justices to change votes before a final decision is reached, the question on abortion restrictions and prohibitions would return to states to decide or for Congress to pass a federal law regulating or restricting abortions.

“Of course, we are very pleased with the wording of this leaked document, but it is of very great concern to us that this is not going to be the final document,” said Wanda Franz, president of West Virginians for Life. “We’re still waiting to make sure that we know what the outcome will be.”

“We also think it’s important to see what the decision eventually is, but we are certainly preparing for the worst,” said Margaret Chapman Pomponio, chief executive officer of reproductive rights organization WV FREE. “Whether it’s changed from what Alitos’s leaked opinion was or even if is softened, it’s going to be bad, it’s going to be devastating and we are on red alert.”

In the Roe case, Justice Harry Blackmun writing for the majority of the court determined that the unnamed plaintiff who challenged a Texas law that made abortion illegal except in cases where a doctor gave permission to save the life of the mother had a right to privacy granted by the 14th Amendment’s due process clause.

The Casey case reaffirmed the Roe decision, but it did open up the door for states to pass restrictions on abortion access. For example, West Virginia Code already bans abortion procedures after the 20th week of gestation, or “pain-capable gestation age.” Senate Bill 468, the Unborn Child with Down Syndrome Protection and Education Act, prohibits abortions because of physical and intellectual disabilities unless the physician can confirm that the abortion is not being conducted due to the physical and intellectual disability.

West Virginia has a number of other abortion laws on the books. According to a list of West Virginia restrictions maintained by the Guttmacher Institute, abortion patients must receive counseling and information discouraging the abortion, a 24-hour waiting period before obtaining an abortion, prohibitions on telemedicine for administering medical abortions and restrictions on certain second trimester abortions.

But there is one law still on the books that could upend all other abortion laws on the books. State Code 61-2-8 makes it as felony for any person to cause an abortion. If convicted, a doctor or other person could be sentenced to between three and 10 years in prison. The only exception is for saving the life of the mother or child.

Senate Judiciary Committee Vice Chairman Ryan Weld, R-Brooke, said State Code 61-2-8 dates back to 1882 and is based on a similar Virginia law from 1849. That section of state code remained active until 1975, when a U.S. Court of Appeals for the Fourth Circuit ruled in Doe v. Charleston Area Medical Center determined that law was constitutional.

“CAMC, at the time even post-Roe, was still adhering to state law stating that it was a felony to perform an abortion except for saving the life of the woman or the child,” Weld said. “The court found that in light of Roe that the statute was unconstitutional beyond question. That’s what has put 61-2-8 on hold all these years since 1975.”

But despite being ruled unconstitutional, the law has never been removed from State Code by the West Virginia Legislature. Weld said lawmakers might have to go back and look at the law.

“Look, this hasn’t been enforced in four decades or five decades,” Weld said. “Most likely this is not enforceable because of that. This is a case where a law is on the books but wasn’t enforced because it had been previously found to be unconstitutional.”

Franz also said lawmakers should probably go back and look at the old law and make changes.

“I think that that old law was written a time before scientific inquiry even caught up with what we know today,” Franz said. “There’s no way I think that legislators would want to see criminalization of abortion in the way that that law provides for it. We’ve been working with our legislators for many years on legislation to protect life, and I think we’re going to continue to work with them to try to address the problems that come with that old piece of legislation.”

While West Virginia is considered to be a solid anti-abortion state, the issue is far more complicated that at the time of Roe. According to an analysis by FiveThirtyEight, there were more abortions performed in the U.S. at the time of the Roe decision than the most recent data available in 2017. That’s due in part to greater restrictions but also greater access to more effective contraceptives, such as IUDs.

Demographics have changed as well, with more woman older than 25 getting abortions, from 35 percent to 63 percent between 1973 and 2017. The number of women younger than 19 getting abortions have shrunk substantially during the same time period, from 33 percent to 19 percent.

Public opinion is also complicated. While a recent Gallup poll found that between 60 percent and 70 percent of respondents want to see Roe upheld, opinions differ on the kinds of restrictions the public supports. While 60 percent of respondents in a 2018 supported abortion access in the first trimester, only 28 percent supported abortion access in the second trimester and 13 percent supported abortion after the third trimester.

West Virginia had its own public opinion polling through a vote in 2018 for a constitutional amendment. Voters voted in favor of adding language to the state Constitution stating that “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” The amendment passed but only by 3 points, with 51.72 percent voting for it and 48.28 percent voting against it.

“That was hardly a mandate to make abortion illegal and out of reach,” Pomponio said. “It shocked conservatives and Republicans in particular that following the (2018) legislative session they did not put forth any abortion restriction legislation.”

Pomponio knows that trying to get the Republican supermajority to slow down on new abortion restrictions is a losing battle, but she hopes lawmakers will take a look at stripping the old abortion criminalization law from State Code.

“We are calling on legislators to do their best due diligence in looking critically at the ramifications of banning all abortion,” Pomponio said. “We need our leaders to dig down deep, call on the experts, call on the healthcare community and the OB-GYNs and really listen to their perspectives and listen to the public, not just a small vocal minority of West Virginians.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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