The Volokh Conspiracy

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West Virginia Legislature Enacts RFRA, With Abortion Carveout

WV is looking to get ahead of RFRA-challenges to post-Dobbs litigation.


The West Virginia legislature has enacted a version of the Religious Freedom Restoration Act (RFRA). (H/T Religion Clause) But there are several exceptions to the rule:

(2) Nothing in this article may be construed to create a cause of action by an employee against a nongovernmental employer; nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn, including, but limited to, any claim or defense arising out of a violation of §16-2F-1 et seq., §16-2I-1 et seq., §16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, §16-2R-1 et seq., §16-5-22, §30-1-26, §33-42-8, or §61-2-8 of this code.

Here, West Virginia is trying to get ahead of the post-Dobbs litigation in other contexts. For example, in Indiana and other states, abortion rights groups have invoked RFRAs to challenge abortion laws. This option would not be viable in West Virginia.

I discuss the religious liberty and abortion in a new article, co-authored with Howie Slugh and Tal Fortgang.