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.” Pursuant
to Roe, the statute was declared unconstitutional by
a federal court of appeals in Doe v. Charleston Area Medical
Center, Inc. The statute
has not been repealed, and
may be enforceable if Roe v. Wade should be overruled. Because
of the West Virginia Supreme Court of Appeals decision in Women’s
Health Center of West Virginia, Inc. v. Panepinto, 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. Whether Panepinto would
allow enforcement of the pre-Roe abortion statute is
uncertain and undecided.
W.Va. Code § 61-2-8 (1966).
638 (4th Cir. 1975).
W.Va. Code Ann. § 61-2-8 (2000).
658 (W.Va. 1993).
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); 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).