CHARLESTON, WV ( Associated Press) — A judge in the West Virginia capital on Monday blocked enforcement of the state’s 150-year-old abortion ban, opening the door for abortions to resume in the state.
Kanawha County Circuit Court Judge Tera L. Salango granted the West Virginia Women’s Health Center a preliminary injunction against the 1800-era ban, saying that in the absence of action by the court, the clinic and their patients, “especially those who are pregnant.” as a result of rape or incest, they are suffering irreparable harm.”
Attorney General Patrick Morrisey denounced the ruling, calling it “a dark day for West Virginia.” He said his office will appeal the decision to the state Supreme Court.
West Virginia has a state law on the books dating back to the 1800s that makes performing or obtaining an abortion a felony, punishable by up to a decade in prison. An exception is provided for cases in which the life of a pregnant person is at risk.
Lawyers for the Women’s Health Center, the state’s only abortion clinic, argued that the old law is invalid because it has not been enforced in more than 50 years and has been superseded by a series of modern laws regulating abortion that They recognize the right of women to the procedure. One example is West Virginia’s 2015 law, which allows abortions up to 20 weeks.
Lawyers for the Women’s Health Center said abortion services are essential health care and that the state’s most vulnerable residents are at risk every day that they don’t have access to that care.
The West Virginia Women’s Health Center had suspended abortion services on June 24, the day the US Supreme Court overturned Roe v. Wade.
Staff have canceled dozens of abortion appointments, fearing they or their patients could be prosecuted under the old statute.
“When in effect, the statute was used to criminalize both people seeking and providing abortion services,” said the ACLU of West Virginia, part of the team of attorneys representing the abortion clinic.
Judge Salango agreed, saying recent laws enacted by the state legislature “hopelessly contradict the criminal prohibition of abortion” and that it would be “inequitable” to allow conflicting laws to remain on the books.
“The code is replete with examples of undeniable conflicts in the law that seem fundamental and irreconcilable, rendering the law inconsistent on any reading,” he said of the criminal abortion ban.
West Virginia Attorney General Patrick Morrisey had argued that the law is still enforceable. State prosecutors claimed the law hasn’t been active in decades just because prosecuting people for having or performing abortions would have been illegal under Roe, but that’s no longer the case.
Laws passed in later years do not conflict with earlier law, the attorney general’s office said, but were instead intended to “fill the void regarding post-Roe unregulated abortion,” and if lawmakers wanted to repeal the 1800-era law, they would. I would have done that.
Morrisey’s office said the Women’s Health Center’s arguments “likely fail and miss the basic story: the West Virginia Legislature’s attempt to protect innocent, unborn life to the greatest extent possible in the context deRoe v. wade”.
“It is counterhistorical to say that the Legislature intended less protection for unborn life if Roe were struck down than if Roe never existed,” they said.
In 2021, the Women’s Health Center performed 1,304 abortions, according to court documents. Most of the patients, 87%, were from West Virginia, with most others from Ohio and Kentucky.
Attorney Kathleen Hartnett of the Cooley Law Firm advocated for the clinic, along with attorneys from the ACLU of West Virginia, Mountain State Justice and others.
