The pre-Roe statute prohibited performance of an abortion on a pregnant woman unless the procedure was done “in good faith, with the intention of saving the life of [the] woman or [her] child.”1 Pursuant to Roe, the statute was declared unconstitutional by a federal court of appeals in Doe v. Charleston Area Medical Center, Inc.2 The statute has not been repealed,3 and may be enforceable if Roe v. Wade were overruled. Because of the West Virginia Supreme Court of Appeals decision in Women’s Health Center of West Virginia, Inc. v. Panepinto,4 however, there is some uncertainty as to enforceability of the pre-Roe statute. In Panepinto, the state supreme court struck down state restrictions on public funding of abortions performed on indigent women. The basis of the decision was that the restrictions violated the equal protection guarantee of the state constitution because they discriminated against the exercise of a federal constitutional right. The court, however, declined to decide whether the state constitution protects a right to abortion separate from and independent of Roe v. Wade.5 Whether Panepinto would allow enforcement of the pre-Roe abortion statute is uncertain and undecided.
1 W.Va. Code § 61-2-8 (1966).
2 529 F.2d 638 (4th Cir. 1975).
3 W.Va. Code Ann. § 61-2-8 (2000).
4 446 S.E.2d 658 (W.Va. 1993).
5 Id. at 664 (noting that “[b]ecause there is a federally-created right of privacy that we are required to enforce in a non-discriminatory manner, it is inconsequential that no prior decision expressly determines the existence of an analogous right” under the state constitution) (emphasis added); id. 667 (“for an indigent woman, the state’s offer of subsidies for one reproductive option and the imposition of a penalty for the other necessarily influences her federally-protected choice) (emphasis added); id. (abortion funding limitations “constitute undue government interference with the exercise of the federally-protected right to terminate a pregnancy”) (emphasis added).
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