Senate passes bill targeting abortion medication sent to West Virginia residents

The Senate has signed off on a bill that would target out-of-state health care providers and others who send abortion-causing medication to people in West Virginia, except in the few circumstances when it’s legal. 

The Senate passed Senate Bill 85 with a vote of 28 to 5 and 1 person absent. The bill would make it a felony to prescribe or distribute medications used for abortion to people in West Virginia unless the abortion is legal.

In West Virginia, abortion is illegal except for medical emergencies and in cases of rape and incest. Abortion via telehealth is also illegal. 

Sen. Patricia Rucker, R-Jefferson, a sponsor of Senate Bill 85, said the “important legislation is designed to protect life in West Virginia and stop the practice of abortifacients being sent and delivered to West Virginia residents without a lawful prescription.”

The penalty for violating the law would be three to 10 years in prison for a person who is not a licensed medical professional. Licensed medical professionals would face the revocation of their license, according to the bill. 

The Senate on Monday adopted an amendment from Rucker that allows a pregnant woman in West Virginia who receives an abortifacient to sue the sender and requires circuit courts to award injunctive relief and damages of $10,000 for each abortion that results. It clarifies that a person need not be indicted or convicted in order to pursue civil remedies. 

Sen. Eric Tarr, R-Putnam, was one of five no votes on the legislation. Tarr said private causes of action like what is in the bill dissuade companies from locating in the state. Senators had also adopted Tarr’s amendment that allows a public cause of action — the attorney general pursuing civil penalties of $150,000 per offense. 

“Had the private cause of action, the job killer in this bill, not been in here, man, I’d have been the biggest champion for this bill,” Tarr said. “I’d have been all over it. Because we can still come back and do this without making this mistake. Because if you want young families having babies over here in West Virginia, we need jobs, Mr. President.”

Rucker said the private cause of action in the bill is not unique to West Virginia’s legislation. It’s a deterrent for people wishing to ignore state law, she said. 

“This legislation does not further expand abortion restrictions,” Rucker said. “It does not create new law regarding abortion, it is enforcement of the existing law that West Virginia legislators have supported and voted for in the past. So just like we have lots and lots of laws in the books, we expect those laws to be followed. What this legislation does is give a pathway for enforcement.”

An attorney for the Senate Judiciary committee told lawmakers that federal courts are likely to decide the issue of criminal penalties for bills like this one. 

Louisiana last month charged a New York doctor with a felony for allegedly sending abortion pills to a pregnant minor in the state, according to reporting by the Associated Press.  New York Gov. Kathy Hochul refused to extradite the doctor to face the charges. New York has a shield law to protect abortion providers who prescribe the medication to patients in states where abortion is outlawed.

Sen. Joey Garcia, D-Marion, was another of the five no votes on the bill. Garcia said the legislation chips away at people getting health care in West Virginia.  

Health care providers testified before the Senate Judiciary Committee that the state’s existing abortion ban makes it difficult for patients to get access to drugs like misoprostal, one of two drugs used in a medication abortion, which is also used to manage hemorrhaging and treating a miscarriage. The bill would make it even more difficult to access the medications, Kelly Lemon, a nurse midwife, testified.

“This is just muddying the waters and making it harder to be a medical professional in the state of West Virginia,” Garcia said. “And it’s another step back. And yeah, there are going to be job losses, not because of trial lawyers, but because of the fact that we’re doing something again to just hurt the people of the state of West Virginia.”

The bill next goes to the House of Delegates for consideration.