Mountain State Spotlight explains: what a Roe v. Wade reversal could mean for West Virginians’ abortion access

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The U.S. Supreme Court is preparing to overturn Roe v. Wade, the ruling that grants people the right to abortion access, according to a draft leaked Monday by Politico. 

The case under discussion concerns a Mississippi law that limited abortion to pregnancies earlier than 15 weeks and oral arguments were held in December. West Virginia Attorney General Patrick Morrisey submitted a brief with 23 other states in support of Mississippi’s arguments. 

At the time, both abortion rights and anti-abortion advocates were expecting the Supreme Court to “at least gut Roe” in deciding the Mississippi case. But the leaked draft decision — which isn’t final and could still change — indicates a complete reversal of the precedent, which legal experts believe would make abortions immediately illegal or severely restricted in roughly half of the country. Here’s how this could impact West Virginians.

What does this draft opinion mean for West Virginians who may need to access an abortion? 

For the meantime, abortion will remain legal in West Virginia up to 20 weeks of gestation. The state’s only dedicated abortion provider, the Women’s Health Center in Charleston, only performs the procedure before a pregnancy’s 16-week mark.

“This is a draft decision,” said Women’s Health Center Director Katie Quinonez. “Abortion is still legal in West Virginia right now; you can still come to the clinic today for your care.”

What would happen if Roe v. Wade were overturned is less clear, but it will most likely result in abortion being banned or severely limited.

West Virginia’s laws on the matter are conflicting. One 19th-century law that the initial Roe ruling made unenforceable criminalizes abortion as a felony punishable by three to 10 years in prison. Meanwhile, a 2015 law tacitly acknowledges abortions’ legality by outlawing the procedure only after 20 weeks gestation. 

West Virginia voters also approved a a constitutional amendment in 2018 clarifying that “nothing in the Constitution of West Virginia secures or protects a right to abortion.”

Anne Lofaso, a professor at West Virginia University’s Supreme Court Clinic, said this provision could end up being the more consequential one for abortion access in West Virginia. While it is not an explicit “trigger law” — a series of laws adopted by some states making abortion illegal if Roe is overturned — Lofaso believes the constitutional amendment could essentially act as one.

Moreover, state lawmakers have repeatedly shown bipartisan support for restrictions on abortion, and the reproductive health organization Guttmacher Institute rates West Virginia as likely to impose further bans once Roe is lifted. And Morrisey said in a tweet after the draft ruling leaked that he intends to use his office to limit abortion “as much as we legally can under the law.”

“This is a very profound crossroad,” Lofaso said. “My guess is that we would have a ban on abortion in West Virginia.”

If abortion is banned in West Virginia, what options are there likely to be for West Virginians seeking to terminate their pregnancies? 

The Guttmacher Institute lists 26 states where it expects abortion could immediately or quickly be restricted should Roe v. Wade be completely overturned. West Virginia and two of its neighbors – Ohio and Kentucky — are on that list. This means the overwhelming burden would fall on West Virginians who aren’t able to travel to other border states like Virginia or Maryland where abortion would likely remain legal.

In many states, women can see a doctor via telehealth to receive a prescription for a medication abortion, delivered via mail. But West Virginia bans telemedicine for abortion medication.

Despite that ban in West Virginia and several other states, there are still options. People seeking abortions would be able to consult with Aid Access to receive medication abortions via mail, said Hayley McMahon, a public health researcher and a board member of West Virginia-based reproductive health advocacy group Holler Health Justice. 

Aid Access is based in Austria and sends the abortion medication in discreet packaging. McMahon says that medication abortion is safe, but women would still be putting themselves at legal risk if law enforcement discovers they used it if abortion is outlawed. 

Another option for people with limited resources to get an abortion is to utilize abortion funds like Holler Health Justice, which can pay for hotels, gas, and other barriers to care. 

“We’re not going anywhere, we’re still going to be here, whether that looks like helping people get abortions out-of-state or helping them get care they need,” McMahon said. 

What happens next? 

Nothing is final, yet. Politico reports that four of the Supreme Court’s conservative justices have indicated they would sign on to the draft authored by Justice Samuel Alito, making it the majority opinion of the Court. But the final decision is still expected to come out within the next two months, and the final vote count could change. 

In the meantime, there are legislative options. Congress could attempt to codify the protections provided by Roe v. Wade into federal law, but it appears unlikely they would have the votes needed to overcome a filibuster, a tactic used to effectively block a vote. Even with the release of the draft ruling, West Virginia Sen. Joe Manchin has indicated that he will not support a Democratic effort to overturn the filibuster to allow them to pass an abortion access law without Republican support.

On the state level, WV FREE Director Margaret Chapman Pomponio said her reproductive health advocacy group will organize to push West Virginia lawmakers to, at the least, clarify that providing abortions isn’t a felony, if not to allow restricted abortion access to continue.

A court battle is also possible. West Virginia advocates like the American Civil Liberties Union have already been preparing for such a ruling, and could argue to maintain the right to an abortion in the state.

But Lofaso believes a ruling in favor of abortion access in West Virginia would be unlikely.

“At most it delays [an abortion ban]” she said. “I think it’d be thrown out of court.”

Lofaso added that the draft ruling, as it’s currently written, has implications beyond abortion access as well.

She said that Roe v. Wade has served as “an important precedent, and is also in a line of cases that also says the government can’t interfere with birth control.”

Furthermore, with Alito arguing that Supreme Court precedent could be overturned because the rights it guarantees were not “deeply rooted in the nation’s history and traditions,” Lofaso fears what other rights could be repealed, like marriage equality.

“Many of my students called me last night,” she said. “Many of them were crying.”

Reach Ian Karbal at [email protected] and Quenton King at [email protected]