West Virginia: Reproductive Care and Abortion in the Mountain State

In June 2022, the Supreme Court of the United States (SCOTUS) handed down the Dobbs versus Jackson Women’s Health Organization decision regarding abortion. We have thus been visiting issues of abortion and reproductive care state-by-state. The issue in the Dobbs case was Mississippi’s Gestational Age Act, written to prohibit all abortions subsequent to 15 weeks gestation, with very few exceptions. Along with upholding the Mississippi law with a 6-3 majority, the SCOTUS used the case to overturn the 1973 Roe v Wade decision, with a 5-4 majority. The United States is thus now a patchwork of very different laws when it comes to reproduction and abortion in particular, and pregnancy care itself is suffering in some states. Mississippi’s 15-week abortion ban that caused the overturning of Roe did not even go into effect, because the state already had a trigger law that took precedence, banning abortion throughout pregnancy, rather than just beyond 15 weeks.

Various states apart from Mississippi, such as Tennessee, Georgia, Alabama, Arizona, and Missouri, have been extremely hostile to the right to choose, while various pro-choice states, such as New York, Connecticut, Illinois, Oregon, and Washington are trying to help out-of-state abortion seekers. In many pro-choice states, such as New York, Connecticut, Illinois, Oregon, New Mexico, Washington, North Carolina, the right to choose is protected up to the point of fetal viability (24-26 weeks gestation) or close to that point, or beyond it. In North Carolina, for instance, allows abortion up to 20 weeks and six days, and some states, such as Oregon and New Jersey, have no time limit. There also are in between states, such as Florida, where you can have an abortion up through the 15th week, but even that right stands on shaky ground that depends a lot on outcomes of the November election (which may have taken place by the time that this post publishes). Interestingly, there are some states in which abortion rights are being upheld, despite strong majorities of anti-choice Republican politicians in the state legislatures and governors, because of either the state constitution or the court system. Such states include Kansas, Alaska, Montana, and Ohio. In Kansas, despite its strong Republican leanings and active anti-abortion politicians and organizations, the people out and voted strongly on a ballot measure in favor of keeping a guarantee of the right to choose in the Kansas state Constitution.

Today, we are visiting the Mountain State, West Virginia, where the situation is grim when it comes to abortion rights. However, there is a law in place that is fairly unusual compared with other states cutoff point for legal abortion in that there are two different cutoff points determining when abortion is legal. For adults, meaning those who are 18 years or older, the cutoff point is just 8 weeks gestation. For minors, however, abortion is permitted up to 14 weeks. As with most states that allow abortion at any point, West Virginia requires that at least one of the abortion-seeker’s parents is notified at least 48 hours before the treatment begins. Also, as with most states, there is a way around the parental notification requirement. It is called a judicial bypass. Usually, parents are very supportive, but in those cases when they are not, the judicial bypass puts the case before a judge. The judge can decide that the young woman is not mature enough to choose abortion, but this places the judge in the situation of implying that the young woman is mature enough to become a parent. Given this absurdity, most judges grant the bypass, but this is by no means a guarantee.

Now, the contrast between and 8-week cutoff time for adults and a 14-week cutoff time for minors is significant. 8 weeks gestation means 8 weeks, counting from the first day of bleeding of your last menstrual period. It is certainly possible for many women to know that they are pregnant by this point. However, due to factors, such as unusually long ovulatory cycles, as occurs in polycystic ovarian syndrome, 8 weeks may now always represent as advanced a stage of pregnancy as it usually does. This could mean that a woman is not yet aware of possible pregnancy, on account of her period usually occurring infrequently, rather than once per month. It also could mean that home pregnancy testing took longer to turn positive than it usually takes. Along with protecting a woman’s life and health, West Virginia allows exceptions for rape and incest, but the documentation for this, such as the police report, must be done quickly. So, while an 8-week cutoff certainly is better than a 6-week cutoff or a ‘heartbeat’ cutoff point that some very abortion-restrictive states have in place, in which many women would miss the cutoff before they can even know that they’re pregnant, the 8-week cutoff does not leave much leeway at all.

As for the 14-week cutoff point for pregnant minors, of course this creates a lot more turn around time, but it still may not be adequate for all cases. As an example why 14 weeks might not be enough, there was a case in Florida involving an 11 year-old girl. Impregnated by her stepfather, the girl did not understand what was happening, and her mother did not figure out the problem, test the girl and discover the pregnancy until she was already in the 20th week.

David Warmflash
Dr. David Warmflash is a science communicator and physician with a research background in astrobiology and space medicine. He has completed research fellowships at NASA Johnson Space Center, the University of Pennsylvania, and Brandeis University. Since 2002, he has been collaborating with The Planetary Society on experiments helping us to understand the effects of deep space radiation on life forms, and since 2011 has worked nearly full time in medical writing and science journalism. His focus area includes the emergence of new biotechnologies and their impact on biomedicine, public health, and society.

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