CHARLESTON – Calling the recent U.S. Supreme Court ruling that overturned Roe v. Wade “shameful,” West Virginia’s only abortion clinic and others have filed a lawsuit to prevent the enforcement of a 19th Century law that would ban abortions in the state.
Women’s Health Center of West Virginia filed the complaint June 29 in Kanawha Circuit Court against Kanawha County Prosecuting Attorney Charles T. Miller and West Virginia Attorney General Patrick Morrisey.
An unnamed physician, his patients, licensed social worker Debra Beatty, women’s health nurse practitioner Danielle Maness and WHC Executive Director Katie Quiñonez also are listed as plaintiffs. The American Civil Liberties Union, ACLU of West Virginia, Mountain State Justice and the Cooley law firm are representing the plaintiffs.
Morrisey
But, “fear of prosecution under this outdated law has already forced the state’s only abortion clinic to suspend abortion services and turn away patients seeking essential care,” a press release about the lawsuit states. “The statute in question, enacted by the state Legislature in the late 1800s, not only criminalized the provision of abortion care, but was also used to punish the person seeking the abortion and even their partners.
On June 24, the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization and overturned its 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey, saying there is no federal constitutional right to an abortion. The law at the center of the Dobbs case was a Mississippi statute banning abortions after 15 weeks of pregnancy. States now will determine abortion rights unless Congress moves to codify it, which is something President Biden already has suggested.
About half of the states have or will have laws that ban abortion, and others have enacted strict measures regulating the procedure. West Virginia has an abortion ban that was instituted when it still was part of Virginia. It makes it a felony for a person to be involved in an abortion, with a sentence of 3-10 years in prison.
In the complaint, the plaintiffs say West Virginia’s statute should be considered void because of “repeal by implication,” a legal concept recognized in West Virginia courts that holds an older law is made void when a newer, conflicting law is passed.
ACLU-WV Legal Director Loree Stark said West Virginia lawmakers have passed law after law over the years regulating the provision of legal abortion, and many of them conflict with the provisions of the criminal abortion statute.
“We will not stand by while this state is dragged back to the 1800s,” Stark said. “Every day that uncertainty remains about the enforceability of this statute is another day that West Virginians are being denied critical, lifesaving healthcare.
“That’s why we are asking the court to make it clear this law cannot be enforced.”
Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said the Supreme Court ruling was an “unprecedented attack on reproductive freedom.”
“No one should be forced to carry a pregnancy against their will and face the life-altering consequences of being denied essential health care,” Kolbi-Molinas said. “Our access to abortion shouldn’t depend on where we live, how much money we make, or who we are.
“We will continue to fight to protect our freedom to make our own decisions about our bodies and our futures in West Virginia and across the country.”
Quiñonez agreed.
“With the overturning of Roe v. Wade, our worst nightmares have become reality,” Quinonez said. “Because of the uncertainty over this state law, we have ceased providing abortion care to our patients out of concern for their safety, as well as the safety of our staff members.
“I worry deeply about our most vulnerable patients who are left with few and difficult options — those who cannot make the expensive trip to travel out of state, will either be forced to continue their pregnancies against their will, or risk criminalization by self-managing their own abortion.”
Mountain State Justice Executive Director Sarah K. Brown said the law’s impact on the health and well-being of West Virginians cannot be overstated.
“The law in question has not been enforced for 50 years,” Brown said. “There should never be uncertainty between West Virginians and their medical providers.”
The 42-page complaint details the history of West Virginia’s Criminal Abortion Ban, which actually was passed in 1849 by the state of Virginia and became West Virginia law when it seceded from Virginia in 1863. It also explains how the law became unenforceable when Roe v. Wade was decided in 1973 and how current state law recognized and regulates legal abortions.
The unnamed physician plaintiff says the ruling will cost him his job. But, he says other medical issues are problematic
“The Criminal Abortion Ban forces him to choose between denying essential health care to his patients and thus breaking the Hippocratic Oath and violating the criminal code,” the complaint states. “Dr. Doe also fears the consequences of utilizing the Criminal Abortion Ban’s exception for life-saving care.
“Given the harsh criminal penalties imposed by the Ban, he is afraid to interpret the language as encompassing anything beyond an immediate or imminent threat to the life of the patient. Physicians and health care professionals are capable of considering the nuances of patient care and determining what constitutes ‘life-saving care,’ such that Dr. Doe would feel more comfortable exercising his medical judgment regarding when care is necessary to save a life if that provision were enforced by licensing boards comprised of other medical professionals.”
But, he says public officials such as Morrisey who would enforce the ban have made their anti-abortion views publicly known.
He says they “do not have the requisite medical or professional training and experience to be able to determine what constitutes life-saving care and so might bring criminal charges arbitrarily.”
“Dr. Doe is also distressed at how narrow and inadequate the Criminal Abortion Ban’s life-saving-care exception is,” the complaint states. “A broad range of serious health conditions that can result in significant, life-altering health consequences short of death can lead some people to seek abortion care, but the Criminal Abortion Ban does not allow for abortion care in such situations.”
Maness and Beatty have similar concerns, according to the complaint.
The plaintiffs seek a restraining order and/or preliminary injunction keeping the defendants and their agents from enforcing the Criminal Abortion Ban and for the court to enter a judgment declaring the ban impliedly repealed and/or void for disuse and for being a violation of the state Constitution. They also seek attorney fees, court costs and other relief.
“We look forward to demonstrating that this archaic law is null and void,” Cooley attorney Kathleen Hartnett said. “Cooley is proud to work with the ACLU and Mountain State Justice on behalf of our clients at the Women’s Health Center of West Virginia to redress the irreparable harm this law is causing.”
In addition to Hartnett, other attorneys listed on the complaint are Stark and Nicholas Ward of ACLU-WV; Kolbi-Molinas; Brown and Bren Pomponio of Mountain State Justice; Marc Suskin, Patrick Hayden, Angeline Chen, Vidya Dindiyal, Michael Bannon, Julie Veroff, Darina Shtrakhman, Alex Robledo and Heather Speers of Cooley.
