West Virginia Unborn Child Protection Act

Background

On September 19, 2022, West Virginia passed a law banning abortions at any stage of development, regardless of viability. The law took effect that day and the criminal penalties associated with the law will go into effect on December 11, 2022. West Virginia was able to pass this law due to the overturning of Roe v. Wade.^[1]

An abortion is permitted in West Virginia if the mother is likely to die or suffer substantial and irreversible harm due to the pregnancy or, in some cases, if the pregnancy resulted from rape or incest. Unlike other states with similar bans, West Virginia does not make exceptions for fetal abnormalities.

As your professional liability insurance company, we believe it is important for you to understand how West Virginia abortion law may change your legal exposure.

Changes in Your Exposure [2]

The table below highlights some of the changes that you should be aware of, how they differ from prior law and potential implications for liability exposure.

New Provision	How Differs from Prior Law	Potential Exposure for MMIC Insureds
Abortions are illegal at any stage of development, regardless of viability unless an exception applies.^[3] Also, note that removing ectopic pregnancies and deceased fetuses is allowed regardless of gestational age.	Abortions were previously legal up to the 20th week of pregnancy.	This increases liability exposure for the physician because abortion care after any stage of development is punishable by criminal penalties with only one exception.
Exception 1: A physician can perform an abortion if that physician, using reasonable medical judgment, determines an abortion is necessary for the preservation of the mother’s life or to prevent serious physical impairment of a major bodily function to the mother of the unborn child.^[4] Note that an abortion performed under this exception must be reported to the State Registrar no later than the 10th day of the month following the month the procedure occurred by the person in charge of the hospital where the abortion was performed in accordance with the standards in the law cited here.^[5]	This exception existed in prior law.	No new significant exposure.
Exception 2: A physician can perform an abortion after conception if the pregnancy is the result of rape or incest and the age of the fetus is less than eight weeks. Note that for a mother under the age of 18, this exception applies so long as the fetus is less than 14 weeks.^[6] Additionally, an official police report must have been filed alleging the rape or incest to a law enforcement agency having jurisdiction to investigate the complaint. This report must be provided to the physician performing the abortion.^[7]	Prior law did not mention what happens in cases of rape or incest.	This increases liability exposure because it requires that the physician knows the age of the fetus is less than eight weeks in the case of a mother over the age of 18 or 14 weeks for a mother under 18.

Potential Penalties

Typically, medical liability policies do not cover violations of state law. West Virginia will not begin enforcing the criminal penalties associated with this law until December 11, 2022. After this date, a physician performing an illegal abortion will be guilty of a felony and must be imprisoned for not less than three years nor more than 10 years. If the mother of the illegally aborted fetus dies, the physician shall be guilty of murder.^[8] A physician performing an illegal abortion will also be stripped of their medical license.^[9]

Guidance

Risk Management Techniques

The following risk management techniques can help physicians mitigate their liability in this area:

Ensure that the medical record and laboratory results support the physician’s clinical decision-making process. Referencing West Virginia’s Unborn Child Protection Act and specific tenets alert the reader of awareness and compliance. An example of this may be: “Adhering to West Virginia’s Unborn Child Protection Act, the abortion is necessary to prevent the death or serious risk of a substantial physical impairment of the patient because of severe preeclampsia.”
Carefully review the hospital’s bylaws to ensure compliance with the facility’s rules regarding abortion and engage the hospital’s ethicist or medical ethics committee in challenging cases.
Ensure that the opinions about clinical impressions and medical necessity of abortion care are uniform across the healthcare team and that all providers document in the medical record in a consistent manner.
Some medical organizations recommend being as proactive as possible to potential patients with presentations that are not as straightforward. Some organizations are recommending that hospitals create a task force (including a lawyer familiar with applicable regulatory law, a physician and a maternal fetal medicine specialist) and an on-call representative to address these emergency situations that may not fit clearly within the legislation. This committee should be afforded the necessary legal protections.

Support

At MagMutual, we have always stood by our physicians and always will. You are our owners and we exist to serve and support you. If you're a MagMutual policyholder and have questions about how a particular situation in your practice may be impacted by this law, please contact us in MyMagMutual via your My Account page.

MagMutual Resources

Roe v. Wade Overruled: What MagMutual's PolicyOwners Need to Know Now

[1] The case, Dobbs v. Jackson Women’s Health Organization, overturned the 49-year precedent set in Roe v. Wade, declaring that the Constitution does not confer any right to abortion and that abortion care should be left to the states to decide.

[2] This article and the information contained herein does not constitute legal advice and cannot replace legal advice. It does not summarize all of the changes to the current requirements nor all of the obligations contained in West Virginia’s Unborn Child Protection Act. We strongly urge you to contact your personal attorney for a detailed account of, and legal advice pertinent to, all the specific changes, requirements and consequences. This article is strictly for informational purposes. Nothing in this article shall create any type of attorney-client relationship.

[3] W. Va. Code § 16-2R-2; W. Va. Code § 16-2R-3.

[4]W. Va. Code § 16-2R-3(a)(3).

[5] W. Va. Code § 16-5-22.

[6] W. Va. Code § 16-2R-3(b).

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.