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When West Virginia legislators took their final vote on the bill that will ban almost every abortion in the state, most state residents had been able to see the bill for less than five hours.
The bill made non-medical abortions extremely difficult to get in West Virginia – and even medically necessary abortions won’t be easy. But people trying to get abortions aren’t the only ones affected. As legal experts and health care workers comb through the legislation, its impacts on others – doctors and nurses, family members, friends and supporters – are becoming clearer.
Some effects of the bill won’t be fully known until they’re tried in the court system. “I don’t think we’re going to know how this law is read and interpreted until we start having [court] cases, and that means real people and their lives,” said Valarie Blake, a West Virginia University law professor who specializes in health care law.
But some things about the state’s near-total abortion ban are known. We break down everything we know now about what the implementation of the ban will look like, and what it will mean for West Virginians across the state.
People who need medical abortions
In a narrow set of circumstances, West Virginians will still be able to get abortions.
If a fetus or embryo is not medically viable, or if a pregnancy is ectopic — a life-threatening condition when a fertilized egg implants itself outside of the uterus —, an abortion would still be legal. Fetuses in ectopic pregnancies cannot survive outside the womb.
The bill expressly says people who obtain abortions for themselves, even illegally, will not face criminal charges. But there are potential gray areas that could be litigated in the future — for example, if someone self-administers an abortion.
Victims of rape or incest
Lawmakers did agree to abortion exceptions for victims of rape and incest – but for people who have already been traumatized by an assault, the barriers are high..
Most adult victims of rape or incest will be allowed to get abortions in the first eight weeks of pregnancy. However, the victim would have to report their abuse to law enforcement at least 48 hours before the procedure.
This presents major hurdles for people who have already been through a traumatic situation. Only about one in three sexual assaults are ever reported to law enforcement. Many of those that are reported go unsolved, and the process can retraumatize victims.
Also, victims may not know that their pregnancy until the window has passed. One study found that the average pregnancy is noticed after 5 ½ weeks, but nearly a quarter of pregnancies are found later. Age, race, educational attainment, poverty and use of contraception all influence when pregnancy is discovered as well.
“The standards that are set by the current rape and incest exceptions are so high they can’t be met frequently,” Senate Minority Leader Stephen Baldwin, D-Greenbrier, on the Senate floor Tuesday. “What’s the point of having the exceptions unless they’re there for marketing because people want exceptions?”
Before a licensed doctor can perform the abortion, they would have to receive a copy of the report either from the patient or law enforcement agency it was filed with.
Adults who are “incapacitated,” a term not defined in the bill, will be able to have an abortion in the case of rape or incest, but will have 14 weeks to undergo the procedure. They would either have to directly report an assault to law enforcement before qualifying for the exception, or undergo treatment related to the assault by a licensed West Virginia doctor. That same doctor, however could not perform the abortion.
“Let’s be very clear: almost no one is going to qualify for those exceptions in order to obtain abortions in West Virginia,” said Katie Quinonez, the executive director of what was until Tuesday the state’s only abortion clinic, the Women’s Health Center of West Virginia in Charleston.
People under 18 years old
Like incapacitated adults, minors will have up to 14 weeks to seek an abortion if they get pregnant because of incest or rape. They will also have to either have the incident reported to law enforcement (even if someone else reports it), or get medical treatment related to the assault (from a different doctor than who would perform the abortion).
Doctors performing abortions for a minor will also be required to notify their patients’ guardians at least 48 hours before the procedure. Minors can ask their local circuit court to waive that notification. A judge will have one working day to hold a hearing and make a ruling. That hearing will be recorded, but the minor’s name is supposed to remain confidential. A minor would have to prove either that notifying their guardians would be dangerous, or that they’re sufficiently mature to decide on an abortion.
Minors can also get an abortion because of a medical emergency, but their guardian would have to be notified within 48 hours after the procedure is finished.
Professionally licensed doctors – which the bill defines as either a M.D. (medical doctor) or D.O. (doctor of osteopathy) with admitting privileges at a West Virginia hospital licensed by the state Office of Health Facility Licensure and Certification and certified by the state Department of Health and Human Resources – would not face criminal penalties for performing abortions.
Doctors also wouldn’t be charged with performing an abortion if they accidentally damaged a fetus, or if the operation is a “medical emergency” needed to save the patient’s life. But if a doctor’s licensing board finds the doctor broke the law by performing an abortion, the bill requires the board to revoke the doctor’s medical license.
Abortion rights advocates and health policy experts worry most about what people – including the medical boards, full of political appointees, that oversee doctors – would consider a “medical emergency.” Legislators defined it as “a condition or circumstance that so complicates the medical condition of a patient as to necessitate an abortion to avert serious risk of the patient’s death or serious risk of substantial life-threatening physical impairment of a major bodily function.”
The bill says a doctor could abort one fetus to save another, and emphasizes that a threat of suicide because of an unwanted pregnancy is not a medical emergency.
“I don’t think many of them [doctors] are going to know what calls for an emergency and what doesn’t, and their license is at stake,” said Blake. “I worry that doctors around the state are waking up this morning and saying, ‘Do I want to gamble with my professional career?’”
That could lead to loss of care for pregnant mothers who are in pain, or at risk of developing severe and potentially life-threatening complications.
“Hospitals are already, in West Virginia, turning away patients who are presenting at the ER with miscarriages that need abortion care to complete their miscarriage,” Quinonez said. Those incidents have been rare, she said, but she expects more of them after the ban.
Doctors who perform an abortion for any reason will have to file a report with the State Registrar, including information about the gestational age of the fetus, how and why the procedure was performed, and the age and general location of the patient. No identifying details about the person obtaining the abortion are required, but the name of the doctor who performed the procedure is. A report will ultimately be sent to the Legislature that could including doctors’ names.
Nurses and other medical professionals
Doctors who don’t meet the licensing requirements under the bill, including doctors who have lost their licenses, could face felony criminal charges, and between 3 and 10 years in prison.
It’s not clear what the bill means for nurses and physician assistants.
Senate spokesperson Jacque Bland said that a nurse professionally assisting a licensed doctor in performing an abortion would not be subject to such charges.
However, the bill defines performing or attempt to induce an abortion as taking steps that a person believes “constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion.”If a nurse or physician assistant were to perform the abortion themselves, they would be subject to penalties.
Enforcement, as with other parts of the bill, may ultimately come down to a lawsuit. State Attorney General Patrick Morrisey’s office can issue guidance and opinions on how these laws should be followed, and Morrisey has repeatedly stated that he hopes to limit abortion in West Virginia as much as possible under the law. But the initial decision on whether to bring charges would rest with county prosecutors.
U.S. Attorney General Merrick Garland has promised to protect reproductive rights in states that seek to limit them. The U.S. Justice Department is suing the state of Idaho on the grounds that their abortion ban, in spite of exceptions to save a patient’s life, violates federal law that requires life-saving emergency care for anyone who needs it.
While the bill itself does not specify what kinds of doctors can perform the procedure, doctors are generally restricted by professional boards and code within their scope of practice. For example, a podiatrist probably wouldn’t be allowed to perform an abortion without facing professional consequences, but that was true before this week.
The Women’s Health Center
Until Tuesday, the Women’s Health Center in Charleston was the only abortion clinic in West Virginia. Some Republican lawmakers lauded that the bill could shut down the facility.
“I’m going to vote for this today not as an overwhelming cheer that this is the greatest thing we could possibly have done,” said Sen. Robert Karnes, R-Randolph,. “But it is going to shut down that abortion clinic.”
Dozens of abortion appointments in the past couple of days were cancelled at Women’s Health, according to Quinonez. The patients will most likely no longer be able to obtain the procedure in the state.
For the time being, the center will remain open, and will keep providing other reproductive health services including birth control access, STI screenings and gender-affirming care.
But about 50% of the center’s procedures, and 40% of its revenue, came from abortion procedures, according to Quinonez. Without that income, public funding and grants will be needed to keep the center’s other services available.
West Virginians who help others obtain abortions
The bill doesn’t explicitly say what would happen to people who drove someone to an illegal abortion, or donated to a fund that was found helping to facilitate illegal abortions.
Priya Walia, a reproductive rights lawyer and the president of the board of Holler Health Justice, an organization that helps Appalachians get abortion and reproductive health care, wrote in an email, “It would be bad public health policy for prosecutors to go after West Virginia neighbors, friends, or families for offering rides to the doctor, especially during a pandemic,” but did not rule out the possibility.
How West Virginians can still get elective abortions
Nothing in the bill prohibits West Virginians from seeking abortions out of state. But for many state residents, this will effectively end access to abortion. Some may not be able to afford the procedure, or transportation or lodging in another state. For those without broadband internet access, finding a place to get a procedure may be difficult.
Holler Health Justice will also continue to provide services that are, for the moment, entirely legal. The non-profit helps people across Appalachia access abortion care where it is legal, whether than need child care, drivers, money for everything from gas costs to medical fees, or something else.
They can be reached online at hollerhealthjustice.org, or by phone at 1-833-465-5379. People leaving a message are encouraged to say whether or not they are comfortable receiving voicemails.
For those who do have broadband access and may be seeking abortions, abortionfinder.org will help them locate the nearest out-of-state clinic and provide information about local laws there. Abortionfunds.org can help people locate locally active abortion funds that help cover costs like medical bills and associated travel and lodging costs.
Reach Ian Karbal at [email protected]