After ruling, W.Va. lawmakers advance criminal abortion ban

Lawmakers in West Virginia’s Republican majority are hurrying to advance legislation that would ban abortion in the state with few exceptions
West Virginia State Capitol (File photo)
West Virginia State Capitol (File photo)(WVVA News)
Published: Jul. 25, 2022 at 9:40 PM EDT
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CHARLESTON, W.Va. (AP) — A week after a Charleston judge barred West Virginia from enforcing an abortion ban law dating to the 19th century, lawmakers in the state’s Republican majority hurried to advance similar legislation that would criminalize abortion with few exceptions.

The legislation, which breezed through the House health committee Monday, closely mirrors the 1800s-era abortion ban. It bars abortion in almost all cases and makes performing the procedure a felony. Physicians who provide abortions could face three to 10 years in prison.

Speaking during the committee meeting, Democratic Del. Barbara Fleischauer said passing such a bill would bring the state back much farther than the 19th century.

“I think that this idea that you’re going to force women to bear children against their will and put doctors and nurses in jail for 10 years is something out of the Middle Ages,” said Fleischauer of Monongalia County, one of only a handful of lawmakers to vote against it.

Republicans made no apologies for their move. In a last-minute announcement Monday, Gov. Jim Justice asked legislators to “clarify and modernize” the state abortion laws following the U.S. Supreme Court’s ruling last month ending constitutional protection for abortion.

“As I have said many times, I very proudly stand for life and I believe that every human life is a miracle worth protecting,” the Republican governor said.

The bill passed the first of three required readings in the House of Delegates and will now head to the House Judiciary Committee. A public hearing is scheduled for Wednesday.

Lawmakers were convening Monday for a special session called by Justice last week to consider reducing the state's income tax. Just as lawmakers were gaveling in, Justice abruptly added the state abortion law to the agenda.

After the Supreme Court overturned the constitutional right to abortion, Justice said several times the state's abortion law might be the subject of a special session, but did not say when. Just last week, he said during a press briefing it could be two months before he calls lawmakers back to discuss abortion. The state's attorney general's office is appealing last Monday's ruling by Kanawha County Circuit Court Judge Tera L. Salango to the state Supreme Court.

In court last week, Judge Salango ruled that the law was unenforceable because it has been superseded by a slew of conflicting modern laws regulating abortion. One example is West Virginia’s 2015 law, which allows abortions until 20 weeks.

The judge said later laws “hopelessly conflict with the criminal abortion ban” and that it would be “inequitable” to allow conflicting laws to remain on the books.

The state's sole abortion clinic, Women’s Health Center of West Virgini,a had suspended abortion services June 24, the day the Supreme Court overturned Roe v. Wade. Staffers canceled dozens of abortion appointments, fearing they or their patients could be prosecuted under the old statute.

The clinic’s Executive Director Katie Quiñonez said following Salango's ruling, the clinic was scheduling patients for abortions as early as this week.

The bill that advanced Monday through the House Health and Human Resources Committee diverges from the 19th-century ban slightly, most apparently in its exceptions. The 1800s-era ban provides only a vague exception in cases where the life of a mother is at risk. The bill introduced Monday provides exceptions for an ectopic pregnancy, a “nonmedically viable fetus” or a medical emergency.

The bill also explicitly states that a mother can't face criminal penalties for having an abortion. According to the ACLU of West Virginia, residents who had abortions before the procedure was protected by Roe v. Wade were penalized under the 1800s-era law.

During the hourslong meeting, the Republican-dominated committee rejected pleas to exempt survivors of rape and incest from the ban. Several people in the audience were crying audibly.

Committee Republicans hustled the bill through without much comment. But Democrats had a lot to say.

“Well, here it is! Another call to Special Session is about Abortion! How cowardly of leadership!” tweeted Delegate Danielle Walker, a Monongalia County Democrat. “We will continue to March and raise our voices! My Body! My Damn Choice is the war cry from many!"

Democratic Del. Kayla Young, who represents Kanawha County in the Charleston area and was sitting in on the health committee meeting, said the bill means “rapists will be able to choose who they have children with.”

Also on Monday, a companion bill in the Senate addressing issues such as adoption tax credits and contraceptives was passed by a committee to the full chamber.

In Justice's special session announcement last week, he touted his tax reduction plan, saying his proposal contains no increases on any other state taxes, and that personal tax brackets would remain the same. He said West Virginians at every income level would see their taxes drop.

The state of West Virginia ended the last fiscal year with a record $1.3 billion surplus.

A 10% reduction is the maximum cut allowed while remaining in compliance with funding stipulations in the American Rescue Plan Act, he said. Justice said the proposal would be retroactive to Jan. 1 and would put $254 million back into residents’ pockets when they file their 2022 taxes.