An earlier version of this story inaccurately stated that the legislature’s abortion ban will go into effect after 90 days. The ban will go into effect as soon as it is signed by the governor. Criminal penalties will be enforced after 90 days. The story has been corrected.
West Virginia Republicans moved forward with the strict ban despite signs in other parts of the country that many American voters do not support the Supreme Court’s ruling and largely oppose the harshest restrictions on abortion. A similar effort to pass a near-total abortion ban in South Carolina fizzled out last week, and voters resoundingly rejected a ballot measure in Kansas that would have stripped abortion protections from the state constitution.
Abortion had been legal up to 20 weeks in West Virginia since July, when a state judge blocked a pre-Roe ban that dated back to the 19th century. The state borders several antiabortion strongholds in the Midwest and South, including Ohio and Kentucky. Abortion is legal east of the state line in Virginia, Maryland and Pennsylvania.
In West Virginia, the Republican-controlled legislature reached a compromise over penalties for doctors who perform illegal abortions that had been a sticking point for some conservative lawmakers. The bill they passed, which now goes to Republican Gov. Jim Justice’s desk, bars abortion from implantation with narrow exceptions to save the pregnant person’s life or in cases of rape or incest, so long as the victim reports the crime.
Justice has indicated that he will sign a bill tightening state restrictions on abortion.
The exceptions for victims of rape or incest limit the procedure to before eight weeks of pregnancy, or 14 weeks for people who are under 18 years old. Doctors who violate the law may lose their medical licenses but will not face criminal penalties. Anyone other than a licensed physician with hospital admitting privileges who performs an abortion faces felony charges and up to five years in prison. Those who receive abortions do not face any penalties.
West Virginians support putting restrictions on abortion more than voters in most other states. A 2018 referendum on a constitutional amendment affirming that “nothing in this Constitution secures or protects a right to abortion or requires funding of abortions” passed with the support of about 52 percent of voters.
But some lawmakers raised concerns that harsh criminal penalties could drive doctors, especially obstetricians, out of the state at a time when some regions are known to be “maternity deserts” that already face physician shortages.
“You’re not concerned we could lose docs who are practicing OB because of this?” state Senate Minority Leader Stephen Baldwin (D) asked after the amended version of the bill was introduced, referring to obstetrics. He also questioned why the Senate was choosing to vote on the new language without giving physicians a chance to weigh in.
“We’ve had a lot of time where we could have involved docs, but now, today, we’re going to vote on this … and they haven’t had time to read it,” Baldwin said.
State Sen. Tom Takubo (R), who opposed the earlier version of the bill and advocated to remove criminal penalties for doctors, said he believed the new language addressed physicians’ fears that they could be prosecuted for trying to save the life of a patient suffering from a life-threatening pregnancy complication.
“I think once they read what is in this amendment, they will feel comfortable,” he said. “I feel this protects those physicians who are not trying to violate the law.”
Some antiabortion Republican senators opposed the amended bill because they felt it did not go far enough in limiting abortion.
“I’m confident that this bill shuts down the abortion clinic,” said state Sen. Eric Tarr (R), who urged his colleagues to vote no on the new language because he said it carved out too many exceptions.
“I’m also torn and disappointed that my vote now is to decide when do you execute an innocent,” he added. “If life is sacred, when does it become sacred?”
About 100 protesters gathered outside the Senate chamber Tuesday to oppose the bill and could be heard inside the state Capitol as senators discussed the bill. Some observers in the Senate gallery briefly disrupted the body after the amended bill was introduced, shouting their dissent.
Even though West Virginians broadly support some restrictions on abortion, advocates for abortion access say the bill is still at odds with the will of the state’s voters.
“West Virginia lawmakers are working to ban abortion in our state, dragging us back to the 19th century,” said Margaret Chapman Pomponio, executive director of WV Free, the state’s largest abortion rights advocacy organization. “They’re plowing ahead, despite recent polls showing that nearly half of West Virginians identify as pro-choice, and a strong majority oppose this draconian legislation.”
Some members of the state House proposed backing away from the bill and instead posing the question directly to voters. They brought up the ballot measure rejected in Kansas last month and suggested West Virginia voters might surprise lawmakers at the polls.
West Virginia’s governor has dismissed suggestions that voters should decide the state’s abortion laws directly.
“Coming down from the U.S. Supreme Court, this is the responsibility of our legislature and our attorney general,” Justice said in August.
Justice called legislators back to the West Virginia Capitol for a special session to consider more stringent abortion restrictions in July.
Days later, the state House passed an initial version of a near-total ban. But the bill stalled after the state Senate became gridlocked over criminal penalties for doctors performing illegal abortions that included fines and prison time. The Senate eventually passed a bill that stripped away many of the penalties for doctors, but the House refused to concur.
State senators and House delegates spent more than a month trying to reach a compromise that could get the bill passed in both chambers. Ultimately, the two chambers managed to find common ground and Tuesday passed the new version of the bill, without criminal penalties for doctors.
Earlier this year, Indiana lawmakers passed the first new abortion ban since the fall of Roe.