(relating to abortion, through the end of 2004)

Summary. 

In section 9, the legislature limited the use of medicaid funds to pay for abortions (1992).  Overturned by the WV Supreme Court in 1993.

In Section 16-2B-2 the legislature instructed local government health clinics not to treat abortion as a form of accepted birth control.  Any clinic instructions about abortion were to be approved by the state before being implemented.  This is routinely ignored, as local clinics are now free to recommend abortion and to help women obtain them.

In section 16-2F the legislature required that a parent of a minor seeking an abortion be notified, but there is a loophole that allows easy bypass of this requirement.  The penalties are not significant.

In section 16-2I the legislature required that women seeking abortion be notified of relevant information and alternatives, and that there be a waiting period.  The penalties are civil, not criminal.  SB 170 in 2003.

In section 33-42 the legislature banned partial birth abortions.  Overturned by the US Supreme Court.

In section 61-2 the legislature made abortion a legal murder, punishable as a felony by 3-10 years in prison.  This is West Virginia's original law, since its formation in 1863, carried over from the old Virginia code.  It is still on the books, but is overturned by the US Supreme Court in 1973, and the WV Supreme Court in 1993.

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16-2B-2. Local boards of health authorized to establish clinics; supervision; purposes; abortion not approved; approval by state board of programs.
A local board of health, created and maintained pursuant to the provisions of article two or article two-a of this chapter, is authorized to establish and operate within its jurisdiction, one or more family planning and child spacing clinics under the supervision of a licensed physician for the purpose of disseminating information, conducting medical examinations and distributing family planning and child spacing appliances, devices, drugs, approved methods and medication without charge to indigent and medically indigent persons on request and with the approval of said licensed physician. Such information, appliances, devices, drugs, approved methods and medication shall be dispensed only in accordance with the recipients' expressed wishes and beliefs and in accordance with all state and federal laws for the dispensing of legend drugs: Provided, That the procedure of abortion shall not be considered an approved method of family planning and child spacing within the intent of this section and is expressly excluded from the programs herein authorized. All local boards of health receiving state or federal funds for family planning or child spacing programs shall first receive approval by the state board of health of their general plan of operation of such programs.

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§16-2F-1. Legislative findings and intent.
The Legislature finds that immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences of their actions; that the medical, emotional and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is immature; that in its current abortion policy as expressed in Bellotti v. Baird, 443 U. S. 622 (1979) and H. L. v. Matheson, 450 U. S. 398 (1981), the United States supreme court clearly relies on physician's commitment to consider all factors, physical and otherwise, before performing abortions on minors; that parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning their child; and that parents who are aware that their minor daughter has had an abortion may better ensure that the minor receives adequate medical attention after her abortion. The Legislature further finds that parental consultation regarding abortion is usually desirable and in the best interests of the minor.
The Legislature further finds in accordance with the U. S. Supreme Court's decision in Bellotti v. Baird, 443 U. S. 622 (1979), and H. L. v. Matheson, 450 U. S. 398 (1981), that there exists important and compelling state interests (i) in protecting minors against their own immaturity, (ii) in fostering the family structure and preserving it as a viable social unit, and (iii) in protecting the rights of parents to rear their own children in their own household.
It is, therefore, the intent of the Legislature to further these interests by enacting this parental notice provision.

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16-2F-2. Definitions.
For purposes of this article, unless the context in which used clearly requires otherwise:
(1) "Minor" means any person under the age of eighteen years who has not graduated from high school.
(2) "Unemancipated minor" means any minor who is neither married nor who has not been emancipated as pursuant to applicable federal law or as provided by section twenty-seven, article seven, chapter forty-nine of this code.
(3) "Actual notice" means the giving of notice directly, in person or by telephone.
(4) "Constructive notice" means the giving of notice by certified mail to the last known address of the parents or legal guardian, return receipt requested.
(5) "Abortion" means the use of any instrument, medicine, drug or any other substance or device with intent to terminate the pregnancy of a female known to be pregnant and with intent to cause the expulsion of a fetus other than by live birth: Provided, That nothing in this article shall be construed so as to prevent the prescription, sale or transfer of intrauterine contraceptive devices or other contraceptive devices or other generally medically accepted contraceptive devices, instruments, medicines or drugs for a female who is not known to be pregnant and for whom such contraceptive devices, instruments, medicines or drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the termination of a known pregnancy.
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§16-2F-4. Waiver of notification; petition to circuit court; contents of petition; duties of attorney general and circuit clerk; confidentiality of proceedings; appointment of counsel and limitation of compensation; findings required to be made by court; petition to supreme court; waiver of certain fees.
(a) A minor who objects to such notice being given to her parent or legal guardian may petition for a waiver of such notice to the circuit court of the county in which the minor resides or in which the abortion is to be performed, or to the judge of either of such courts. Such minor may so petition and proceed in her own right or, at her option, by a next friend.
(b) Such petition need not be made in any specific form and shall be sufficient if it fairly sets forth the facts and circumstances of the matter, but shall contain the following information:
(i) The age of the petitioner and her educational level;
(ii) The county and state in which she resides;
(iii) A brief statement of petitioner's reason or reasons for the desired waiver of notification of the parent or guardian of such minor petitioner.
No such petition shall be dismissed nor shall any hearing thereon be refused because of any defect in the form of the petition.
(c) Upon the effective date of this article or as soon thereafter as may be, the attorney general shall prepare suggested form petitions and accompanying instructions and shall make the same available to the several clerks of the circuit courts. Such clerks shall see that a sufficient number of such suggested form petitions and instructions are available in the clerk's office for the use of any person desiring to use the same for the purposes of this section.
(d) All proceedings held pursuant to this article shall be confidential and the court shall conduct all such proceedings in camera. The court shall inform the minor petitioner of her right to be represented by counsel and that if she is without the requisite funds to retain the services of an attorney, that the court will appoint an attorney to represent her interest in the matter. If the minor petitioner desires the services of an attorney, an attorney shall be appointed to represent such minor petitioner, if she advises the court under oath or affidavit that she is financially unable to retain counsel. Any attorney appointed to represent such minor petitioner shall be appointed and paid for her services pursuant to the provisions of article twenty-one, chapter twenty-nine of this code: Provided, That the pay to any such attorney pursuant to such appointment shall not exceed the sum of one hundred dollars.
(e) The court shall conduct a hearing upon the petition without delay, but in no event shall the delay exceed the next succeeding judicial day, and the court shall render its decision immediately upon its submission and, in any event, an order reflecting the findings of fact and conclusions of law reached by the court and its judgement shall be endorsed by the judge thereof not later than twenty-four hours following such submission and shall be forthwith entered of record by the clerk of the court. All testimony, documents and other evidence presented to the court, as well as the petition and any orders entered thereon and all records of whatsoever nature and kind relating to the matter shall be sealed by the clerk and shall not be opened to any person except upon order of the court and, then, only upon good cause being shown therefor. A separate order book for the purposes of this article shall be maintained by such clerk and shall likewise be sealed and not open to inspection by any person save upon order of the court for good cause shown.
(f) Notice as required by section three of this article shall be ordered waived by the court if the court finds either:
(1) That the minor petitioner is mature and well informed sufficiently to make the decision to proceed with the abortionindependently and without the notification or involvement of her parent or legal guardian, or
(2) That notification to the person or persons to whom such notification would otherwise be required would not be in the best interest of the minor petitioner.
(g) If or when the circuit court, or the judge thereof, shall refuse to order the waiver of the notification required by section three of this article, a copy of the petition and all orders entered in the matter and all other documents and papers submitted to the circuit court, may be presented to the supreme court of appeals, or to any justice thereof if such court then be in vacation, and such court or justice if deemed proper, may thereupon order the waiver of notification otherwise required by section three of this article. The supreme court of appeals or justice thereof shall hear and decide the matter without delay and shall enter such orders as such court or justice may deem appropriate.
(h) If either the circuit court or the supreme court of appeals, or any judge or justice thereof if either of such courts be then in vacation, shall order a waiver of the notification required by section three of this article, any physician to whom a certified copy of said order shall be presented may proceed to perform the abortion to the same extent as if such physician were in compliance with the provisions of said section three and, notwithstanding the fact that no notification is given to either the parent or legal guardian of any such unemancipated minor, any such physician shall not be subject to the penalty provisions which may be prescribed by this article for such failure of notification.
(i) No filing fees may be required of any minor who avails herself of any of the procedures provided by this section.

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16-2F-5. Emergency exception from notification requirements.
The notification requirements of section three of this article do not apply where there is an emergency need for an abortion to be performed if the continuation of the pregnancy constitutes an immediate threat and grave risk to the life or health of the pregnant minor and the attending physician so certifies in writing setting forth the nature of such threat or risk and the consequences which may be attendant to the continuation of the pregnancy. Such writing shall be maintained with the other medical records relating to such minor which are maintained by the physician and the facility at which such abortion is performed.

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§16-2F-6. Reporting requirements for physicians.
Any physician performing an abortion upon an unemancipated minor shall provide the department of health a written report of the procedure within thirty days after having performed the abortion. The department of health shall provide reporting forms for this purpose to all physicians and public health facilities required to be licensed pursuant to article five-b of this chapter. The following information, in addition to any other information which may be required by the department of health, regarding the minor receiving the abortion shall be included in such reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births;
(5) Previous abortions;
(6) Complications, if any, of the abortion being reported;
(7) Reason for waiver of notification of the minor's parent or guardian, if such notice was waived; and
(8) The city and county in which the abortion was performed.
Any such report shall not contain the name, address or other information by which the minor receiving the abortion may be identified.
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§16-2F-7. Article not to be construed to require abortion.
Nothing in this article, nor in any order issued pursuant thereto, shall require that a physician perform an abortion or that any person be required to assist in the performance of an abortion if such physician or person, for any reason, medical or otherwise, does not wish to perform or assist in such abortion.
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16-2F-8. Penalties.
Any person who knowingly performs an abortion upon an unemancipated minor in violation of this article or who knowingly fails to conform to any requirement of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than thirty days, or both fined and imprisoned.

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ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.

§16-2I-1. Definitions.
For the purposes of this article, the words or phrases defined in this section have these meanings ascribed to them.
(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead embryo or fetus.
(b) "Attempt to perform an abortion" means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in West Virginia in violation of this article.
(c) "Medical emergency" means any condition which, on the basis of a physician's good-faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(d) "Physician" means any medical or osteopathic doctor licensed to practice medicine in this state.
(e) "Probable gestational age of the embryo or fetus" means what, in the judgment of the physician, will with reasonable probability be the gestational age of the embryo or fetus at the time the abortion is planned to be performed.
(f) "Stable internet website" means a website that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the department of health and human resources.
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§16-2I-2. Informed consent.
No abortion may be performed in this state except with the voluntary and informed consent of the female upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if, and only if:
(a) The female is told the following, by telephone or in person, by the physician or the licensed health care professional to whom the responsibility has been delegated by the physician who is to perform the abortion at least twenty-four hours before the abortion:
(1) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility;
(2) The probable gestational age of the embryo or fetus at the time the abortion is to be performed; and
(3) The medical risks associated with carrying her child to term.
The information required by this subsection may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied by the female to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician and whatever other relevant information is reasonably available to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician. It may not be provided by a tape recording, but must be provided during a consultation in which the physician or licensed health care professional to whom the responsibility has been delegated by the physician is able to ask questions of the female and the female is able to ask questions of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician.
If a physical examination, tests or the availability of other information to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician subsequently indicate, in the medical judgment of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician, a revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time prior to the performance of the abortion procedure.
Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.
(b) The female is informed, by telephone or in person, by the physician who is to perform the abortion, or by an agent of the physician, at least twenty-four hours before the abortion procedure:
(1) That medical assistance benefits may be available for prenatal care, childbirth and neonatal care through governmental or private entities;
(2) That the father, if his identity can be determined, is liable to assist in the support of her child based upon his ability to pay even in instances in which the father has offered to pay for the abortion; and
(3) That she has the right to review the printed materials described in section three of this article, that these materials are available on a state-sponsored website and the website address.
The physician or an agent of the physician shall orally inform the female that the materials have been provided by the state of West Virginia and that they describe the embryo or fetus and list agencies and entities which offer alternatives to abortion.
If the female chooses to view the materials other than on the website, then they shall either be provided to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by first class mail in an unmarked envelope.
The information required by this subsection may be provided by a tape recording if provision is made to record or otherwise register specifically whether the female does or does not choose to have the printed materials given or mailed to her.
(c) The female shall certify in writing, prior to the abortion, that the information described in subsections (a) and (b) of this section has been provided to her and that she has been informed of her opportunity to review the information referred to in subdivision (3), subsection (b) of this section.
(d) Prior to performing the abortion procedure, the physician who is to perform the abortion or the physician's agent shall obtain a copy of the executed certification required by the provisions of subsection (c) of this section.
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§16-2I-3. Printed information.
(a) Within ninety days of the effective date of this article, the secretary of the department of health and human resources shall cause to be published, in English and in each language which is the primary language of two percent or more of the state's population, as determined by the most recent decennial census performed by the U.S. census bureau, and shall cause to be available on the website provided for in section four of this article the following printed materials in such a way as to ensure that the information is easily comprehensible:
(1) Geographically indexed materials designed to inform the reader of public and private agencies and services available to assist a female through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers. At the option of the secretary of health and human resources, a twenty-four-hour-a-day telephone number may be established with the number being published in such a way as to maximize public awareness of its existence which may be called to obtain a list and description of agencies in the locality of the caller and of the services they offer; and
(2) Materials designed to inform the female of the probable anatomical and physiological characteristics of the embryo or fetus at two-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus's survival and pictures or drawings representing the development of an embryo or fetus at two-week gestational increments: Provided, That any such pictures or drawings must contain the dimensions of the embryo or fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the embryo or fetus at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with carrying a child to term.
(b) The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The website provided for in section four of this article shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on the website shall be a minimum of 200 x 300 pixels. All letters on the website shall be a minimum of eleven-point font. All information and pictures shall be accessible with an industry standard browser requiring no additional plug-ins.
(c) The materials required under this section shall be available at no cost from the department of health and human resources upon request and in appropriate numbers to any person, facility or hospital.
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16-2I-5. Procedure in case of medical emergency.
When a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a twenty-four-hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.
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16-2I-6. Protection of privacy in court proceedings.
In every civil or criminal proceeding or action brought under this article, the court shall rule whether the anonymity of any female upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the female should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest and why no reasonable, less restrictive alternative exists. In the absence of written consent of the female upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under section nine of this article shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.
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§16-2I-9. Civil remedies.
Any person upon whom an abortion has been attempted or performed without section two of this article having been complied with may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages. If the person upon whom an abortion has been attempted or performed without section two of this article having been complied with is a minor, the legal guardian of the minor may maintain an action against the person who attempted to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately formed intention to violate this article for compensatory damages.
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§33-42-3. Definitions.
For purposes of this article:
(1) "Advanced nurse practitioner" means a certified nurse-midwife, or an advanced nurse practitioner certified to practice in family practice, women's health (ob/gyn), or primary care adult, geriatric or pediatric practice, practicing within the lawful scope of that provider's practice.
(2) "Health benefits policy" means any individual or group plan, policy or contract for health care services issued, delivered, issued for delivery or renewed in this state by a health care corporation, health maintenance organization, accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, nonprofit medical service corporation or similar entity, when the policy or plan covers hospital, medical or surgical expenses.
(3) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.
(4) "Physician performing a partial-birth abortion" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery in West Virginia, or any other individual who is legally authorized by the state to perform abortions: Provided, That any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion, is subject to the provisions of this article.
(5) "Vaginally delivers a living fetus before killing the fetus" means deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure that the physician or person delivering the living fetus knows will kill the fetus, and kills the fetus.
(6) "Women's health care provider" means an obstetrician/ gynecologist, advanced nurse practitioner certified to practice in women's health (ob/gyn), certified nurse-midwife or physician assistant-midwife practicing within the lawful scope of that provider's practice.
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§61-2-8. Abortion; penalty.
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.
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§62-9-5. Indictment for abortion.
An indictment for abortion shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):
That A................, on the ........... day of ..........., nineteen ..............., in the said county of .............., did feloniously, wilfully and unlawfully administer to and cause to be taken by one B............., a female person, who was then and there pregnant with child, a certain drug (or thing) commonly called (name the drug or thing) .............. (or the name and character of which is to the grand jurors aforesaid unknown) (or did feloniously, wilfully and unlawfully employ and use upon the body and womb of one B..............., a female person, who was then and there pregnant with child, a certain instrument called ..............) (or the name and character of which instrument is to the grand jurors aforesaid unknown) (or did feloniously, wilfully and unlawfully employ and use upon the body of one B................, a female person, who was then and there pregnant with child, certain means (describe the means used) (or the character and description of which are to the grand jurors aforesaid unknown), with intent then and there to destroy such unborn child of the said B..............., and to produce the abortion and miscarriage of the said B...............; and that the said A............, then and there and by the means aforesaid did feloniously, wilfully and unlawfully destroy such unborn child and produce such abortion and miscarriage of the said B..............., the same not being then and there done by the said A.................., in good faith with the intention of saving the life of said B................ or that of her said unborn child, against the peace and dignity of the State.
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