Women’s health group sues West Virginia over state’s abortion restrictions – JURIST

James Eaton

The Women’s Health Center of West Virginia (WHC) Wednesday brought a federal lawsuit against the president and secretary of the West Virginia Board of Medicine. The lawsuit centers on medical board’s regulation and enforcement of House Bill 302.

The bill, signed into law in September 2022, includes a “hospitalization requirement,” mandating all legal abortions take place in a hospital. It further requires a physician performing an abortion to maintain “hospital privileges.” WHC maintains the bill is unconstitutional. They emphasize the legislature did not consider evidence or outcomes with regards to the health and safety of abortion patients. WHC claims the move violated their Fourteenth Amendment rights. They claim the legislature’s primary goal was to “shut down” abortion in the state.

The WHC advanced claims the bill does not serve a purpose and fails to meet rational basis review. WHC used empirical data to illustrate why the “hospitalization requirement” is irrational. This data included low hospitalization rates for abortion patients at less that one percent. The data also demonstrated higher mortality rates for other common outpatient procedures such as colonoscopies (2.9 per 100,000) and tonsillectomies (6.9 per 100,000) when contrasted with abortion (0.7 per 100,000). WHC also pointed to its safe and effective procedures developed over five decades as an outpatient abortion provider. By comparison, hospitals in West Virginia have historically not provided for abortions except in limited, emergency situations.

The “hospital privileges” requirement, the WHC claims, also fails review. They point to no standard of admittance to a hospital staff. Each facility administrator is permitted to make their own decisions. Physicians may have to take on different duties and additional workloads to qualify. Additionally, WHC cited a 2018 report by the National Academies of Science, Engineering, and Medicine (NASEM) which labels such privileges as counterproductive. The report concluded privilege requirements “reduce availability of care by imposing unneeded restrictions.”

West Virginia Attorney General Patric Morrisey responded to the lawsuit by saying, “[H]is office will step up and defend the state’s abortion law.” He added, “[T]he law is constitutional… and reflects West Virginian’s desire to defend those who can’t defend themselves.” West Virginia is facing another legal challenge brought by GenBioPro Inc., a generic abortion pill manufacturer.

West Virginia currently does not allow abortions. Exceptions are provided in limited circumstances involving sexual assault, incest, or minors and incapacitated adults who become pregnant through either. Additional exceptions are provided for non-viable fetuses, ectopic pregnancies and medical emergencies. WHC has been the state’s only abortion provider since 2018.

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