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West Virginia Prosecuting Attorneys Association comes out against criminal charges for miscarriages

(Court Reports - Photo Illustration/MetroCreativeConnection)

CHARLESTON — An organization representing prosecuting attorneys across West Virginia sent a clear message that women who suffer miscarriages do not need to contact law enforcement or fear criminal prosecution despite the claims of a Southern West Virginia prosecutor.

In a press release Monday, the West Virginia Prosecuting Attorneys Association said miscarriages should not incur criminal liability.

“The West Virginia Prosecuting Attorneys Association wishes to clarify that recent public statements made regarding this subject do not reflect the consensus, official position or legal interpretation of the association, its officers, board members or members of its Legislative Committee,” Tyler County Prosecuting Attorney Luke Furbee, president of the association, said.

The statement from the association comes following comments made in recent weeks by Raleigh County Prosecuting Attorney Tom Truman, who claimed in media interviews that women could face potential criminal charges if they do not inform law enforcement of miscarriages.

“Call your doctor. Call law enforcement, or 911, and just say, ‘I miscarried. I want you to know,'” Truman said to WVNS-TV in a June 2 interview.

The West Virginia Legislature passed House Bill 302 in a 2022 special session, banning all abortions unless a licensed medical professional’s reasonable judgment calls for an abortion, such as cases of a non-medically viable fetus, ectopic pregnancies or medical emergencies.

The law came following a June 2022 decision by the U.S. Supreme Court that reversed two previous high court decisions that gave women the right to abortion access, returning the issue back to the states – Roe v Wade and Planned Parenthood of Southeastern Pa. v. Casey. A circuit court in Kanawha County issued a preliminary injunction against West Virginia’s felony abortion law that dated back to the mid-1800s and it came back to life following the Supreme Court’s ruling.

According to HB 302, abortions in the instances of sexual assault or incest are exempted from the abortion ban up to eight weeks of gestation for adults and 14 weeks for minors, though a report of sexual assault must be made to law enforcement.

Medical professionals who perform abortions outside of the bill’s provisions are not subject to criminal penalties, but they would be at risk of losing their medical licenses. The bill also provides protections to women who have an abortion procedure from criminal prosecution.

Under the law, miscarriages are not considered abortions. However, Truman told WVNS that some county prosecutors had talked about bringing charges against women who have miscarriages and do not report the miscarriages, citing a state law regarding the disposal of human remains, a misdemeanor that carries between 10 and 90 days of jail time and a fine of between $500 and $1,000.

“The kind of criminal jeopardy you face is going to depend on a lot of factors,” Truman said. “What was your intent? What did you do? How late were you in your pregnancy? Were you trying to hide something, were you just so emotionally distraught you couldn’t do anything else? If you were relieved, and you had been telling people, ‘I’d rather get ran over by a bus than have this baby,’ that may play into law enforcement’s thinking, too.”

In his Monday statement, Furbee pushed back on the claim that county prosecutors have been discussing the possibility of charging women who have miscarriages, urging the public to avoid unverified and inaccurate legal interpretations.

“This is not a subject matter that has been widely discussed among West Virginia prosecutors, nor does it need to be, and any comments that are not from the WVPAA were made without coordination or endorsement from the WVPAA,” Furbee said. “The WVPAA wants to make abundantly clear that any assertion that individuals who experience the unfortunate event of a miscarriage in West Virginia should be notifying law enforcement or face potential criminal prosecution is incorrect and not supported by West Virginia law.”

“The WVPAA does not agree with or support the idea that experiencing a miscarriage could, or should, trigger criminal liability,” Furbee continued. “Such a position is contrary to both the law and the values held by prosecutors across our state, who remain committed to justice, compassion, and the appropriate application of criminal statutes.”

Margaret Chapman Pomponio, the executive director of reproductive rights organization West Virginia Free, praised the association for its statement in a social media post Monday.

“Having a miscarriage is not criminal. The Raleigh County prosecutor in (West Virginia) WV was wrong and irresponsible for spreading abhorrent misinformation. Thank you for the crystal-clear statement, West Virginia Prosecuting Attorneys Association,” Pomponio said. “We are not shocked that an overzealous prosecutor might take such a draconian and dangerous position. This is what happens in states with abortion bans. Thankfully, the Raleigh prosecutor is way outside the mainstream.”

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