CHARLESTON, W.Va. (AP) — A judge in West Virginia’s capital blocked enforcement of the state’s 150-year-old abortion ban on Monday, opening the door for abortions to be resumed within the state.
Kanawha County Circuit Court Judge Tera L. Salango granted the Women’s Health Center of West Virginia a preliminary injunction against the 1800s-era ban, saying that within the absence of motion by the court, the clinic and its patients, “especially those that are impregnated because of this of a rape or incest, are suffering irreparable harm.”
Attorney General Patrick Morrisey decried the ruling, calling it “a dark day for West Virginia.” He said his office will appeal the choice to the state Supreme Court.
West Virginia has a state law on the books dating back to the 1800s making performing or obtaining an abortion a felony, punishable by as much as a decade in prison. It provides an exception for cases by which a pregnant person’s life is in danger.
Lawyers for the Women’s Health Center — the state’s only abortion clinic — argued that the old law is void since it has not been enforced in greater than 50 years and has been superseded by a slew of recent laws regulating abortion that acknowledge a lady’s right to the procedure. One example is West Virginia’s 2015 law, which allows abortions until 20 weeks.
The Women’s Health Center’s attorneys said abortion services are essential health care, and the state’s most vulnerable residents are put in danger daily they don’t have access to that care.
The Women’s Health Center of West Virginia had suspended abortion services June 24, the day the U.S. Supreme Court overturned Roe v. Wade.
Staffers have canceled dozens of abortion appointments, fearing they or their patients might be prosecuted under the old statute.
“When it was in effect, the statute was used to criminalize each individuals who seek and supply abortion care,” said the ACLU of West Virginia, a part of the team of attorneys representing the abortion clinic.
Judge Salango agreed, saying the recent laws enacted by the state legislature “hopelessly conflict with the criminal abortion ban” and that it could be “inequitable” to permit conflicting laws to stay on the books.
“The code is replete with examples of undeniable conflicts within the law that appear fundamental and irreconcilable, making the law incompatible by any reading,” she said of the criminal abortion ban.
West Virginia Attorney General Patrick Morrisey had argued that the law remains to be enforceable. State attorneys claimed the law has not been energetic in a long time only because prosecuting people for getting or performing abortions would have been illegal under Roe — but that’s now not the case.
The laws passed in years since don’t conflict with the old law, the attorney general’s office said, but reasonably were intended to “fill the void regarding unregulated post-Roe abortion,” and if lawmakers desired to repeal the 1800s-era law, they’d have done so.
Morrisey’s office said the Women’s Health Center’s arguments “are more likely to fail and overlook basic history: the West Virginia Legislature’s try and protect innocent, unborn life to the best extent possible against the backdrop of Roe v. Wade.”
“It’s counter-historical to say that the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed,” they said.
In 2021, the Women’s Health Center performed 1,304 abortions, in accordance with court documents. Nearly all of patients — 87% — were from West Virginia, with most others from Ohio and Kentucky.
Attorney Kathleen Hartnett from the Cooley law firm argued for the clinic, together with attorneys from the ACLU of West Virginia, Mountain State Justice and others.