With Roe v. Wade overturned, what's next for West Virginia abortion law?

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Jun. 25—MORGANTOWN — The U.S. Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, returning authority on abortion law to the states.

President Biden is calling on Congress to again federalize abortion law, but unless and until that happens, the question for West Virginia is: what will West Virginia's law be ?

The answer, as we'll unfold below, falls into the hands of the state attorney general and the Legislature.

We'll start at the top with Gov. Jim Justice, who issued a statement and read it aloud during his Friday morning COVID briefing.

Before reading the statement, he said of the ruling, "It's big news. It's major news."

His statement was brief: "I applaud the Supreme Court's courageous decision today. I've said many times that I very proudly stand for life and I am rock-solid against abortion, and I believe that every human life is a miracle worth protecting."

On what happens next, he said: "I will not hesitate to call a special session after consulting with the Legislature and my legal team if clarification in our laws needs to be made."

During his briefing, Justice added that we should be looking at every way to help crisis pregnancy centers across the state. He's had discussion with legislative leaders and others, but not at length.

Attorney General Patrick Morrisey said this: "In the next few days, I will be providing a legal opinion to the Legislature about how it should proceed to save as many babies' lives as humanly and legally possible."

The Supreme Court ruling came in response to what is known as the Dobbs case and Morrisey noted that in July 2021, he joined a 24-state brief supporting life in the Dobbs case. The brief urged the Supreme Court to support the right of individual states to regulate abortion and promote the sanctity of life within their borders.

Morrisey commented on the ruling: "This historic decision is long past due, although it took nearly 50 years to overturn several flawed Supreme Court decisions that have led to the tragic deaths of more than 60 million unborn children. I am proud to stand with those who agree that the law must afford the unborn the same rights as everyone, most especially the inviolable right to life. Our Constitution should never have been interpreted in a way that lets it override the states' compelling interest to protect innocent life."

Senate President Craig Blair and House Speaker Roger Hanshaw issued a joint statement. They said: "We applaud the U.S. Supreme Court's decision today to affirm that every human life is precious. We stand strong with the majority of West Virginians who have shown us and told us they believe unborn children are entitled to the same rights as everyone, and we are ready to expeditiously take any necessary steps to ensure we continue to save and protect as many innocent lives as possible in West Virginia."

They continued: "Our legislative attorneys have been preparing for this decision for weeks. Abortion is addressed in numerous statutes in West Virginia Code, and now our attorneys will need to further review those statutes to determine how they apply in light of this decision. We will work with the executive branch to address any needs relating to our state's abortion laws that may arise from today's opinion."

What is current West Virginia law ? The Dominion Post spoke with WVU law professor Anne Marie Lofaso about that.

Before reporting the conversation, we note that during the last session, the Legislature took up two abortion-related bills. One, HB 4004, proposed to ban abortions after 15 weeks' gestation, similar to the Mississippi law in question in the Dobbs case. It passed the House 81-18 but died in the Senate on second reading.

SB 468, the Unborn Child with Down Syndrome Act, passed both houses and was signed into law. Somewhat broader than the name suggests, it forbids performing an abortion on an unborn child with a disability—including Down syndrome, though that isn't named in the House version of the bill—except in the case of medical emergency or a non-medically viable fetus. It contains reporting requirements and provides that a licensed medical professional who violates the code is subject to licensing board discipline.

In 2014, the last year Democrats controlled the Legislature, the Democrat-sponsored Pain-capable Fetus Protection Act passed both houses but was vetoed by Gov. Earl Ray Tomblin. In 2015, the Republican-sponsored HB 2568, the Pain-capable Unborn Child Protection Act, again passed both houses and again saw a Tomblin veto, but this time the Legislature overturned the veto.

The bill prohibits abortions after 22 weeks gestational age (20 weeks post-fertilization). It makes exceptions to avert the mother's death or to avert "serious risk of substantial and irreversible physical impairment of a major bodily function." It also permits abortions if the fetus is "medically nonviable, " meaning unable to live outside the womb.

Lofaso said that pending action by the attorney general and the Legislature, and possible court action leading to a state Supreme Court ruling, West Virginia's abortion law may revert to what was brought over from Virginia in 1863.

It's found in state code 61-2-8 and says, "Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years ; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child."

That piece of code makes all abortions at any stage illegal, except to save the mother's life. Because it conflicts with later legislation based on Roe v. Wade, Lofaso said, we'll have to wait and see how Morrisey and the Legislature proceed.

For example, she said, the code refers to "good faith " and what that is would be up to a jury in each case. "How many doctors are going to be willing to risk their license to perform an abortion for the mother's life ?"

So doctors would have to take careful consideration when dealing with an ectopic pregnancy or a dangerous situation, she said. "I think people have to take this very seriously, what that is, and hope the attorney general doesn't lift that."

She said, "Hopefully there will be discussion, that we can have peaceful debate. I hope the best of our democracy comes out at this point."

The Supreme Court ruling The 6-3 decision came in the case of Dobbs v. Jackson Women's Health Organization, concerning a Mississippi statute prohibiting abortion after 15 weeks of pregnancy.

It overturns Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that created the "undue burden " standard. It invalidated state laws that had "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The court ruling notes that in Dobbs, a U.S. District Court permanently enjoined enforcement of Mississippi's, reasoning that its 15-week restriction on abortion violates Supreme Court cases forbidding states to ban abortion pre-viability. The Fifth Circuit affirmed.

But the petitioners defended the law on the grounds that Roe and Casey were wrongly decided and that it is constitutional. The ruling says, "The Constitution does not confer a right to abortion ; Roe and Casey are overruled ; and the authority to regulate abortion is returned to the people and their elected representatives."

The opinion says, "Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the state's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.

"Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

Delivering the opinion of the court, Alito said, "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.

"That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition " and "implicit in the concept of ordered liberty. The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."

Justices Breyer, Sotomayor and Kagan dissented. They said, "For half a century, Roe v. Wade and Planned Parenthood v. Casey have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman's right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman's body or the course of a woman's life: It could not determine what the woman's future would be."

The court "held that the state could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman's life or health. It held that even before viability, the state could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the court held, a state could not impose a 'substantial obstacle' on a woman's 'right to elect the procedure' as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.

"Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the court has often stated, protecting fetal life is rational, states will feel free to enact all manner of restrictions."

TWEET David Beard @dbeardtdp EMAIL dbeard @dominionpost.com