CHARLESTON – A Kanawha Circuit judge has granted a preliminary injunction that would prevent the state’s criminal abortion law from being enforced.
And West Virginia Attorney General Patrick Morrisey said the ruling will be appealed as soon as possible.
During a July 18 hearing, Kanawha Circuit Judge Tera Salango sided with attorneys representing what was the state’s only abortion clinic as they argued that the 1840s law is so vague that it can’t be enforced and that newer laws on the books presume abortion is legal because they were written when Roe v. Wade was in effect.
Tera Salango
| courtswv.gov
The current law, which actually was a Virginia law written in 1843 before West Virginia became a state, prescribes three to 10 years in prison for those involved in performing an abortion.
“As you know, my role here is to simply interpret the law,” Salango said at the end of the nearly hour-long hearing. “I’m not going to play the role of a super Legislature.
“I will not put words in the Legislature’s mouth. If the Legislature intended for the criminal abortion statute to be in full force, it was free to pass a trigger law similar to a number of other states,” she said. "The Legislature chose not to do so.
"If the Legislature wishes to resolve the conflict with repealing or amending various code sections, that is certainly in their purview and would appear free to do so under the recent Dobbs decision.
"It simply does not matter whether you are pro-choice or pro-life, every citizen in this state has a right to clearly know the laws under which they are expected to live. ...
“I do find that an injunction is appropriate.”
Salango said the newer laws restricting and regulating abortions in the state essentially repealed the older law.
“This court’s order simply maintains the status quo,” Salango said, also saying the Legislature could have passed a trigger law similar to those in other states to make it clear it intended for an abortion ban to be in effect.
Women’s Health Center of West Virginia said the 1840s statute should be considered void under the doctrine of “repeal by implication,” a legal concept that holds an older law is made void when a newer, conflicting law is passed. It said state 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. The lawsuit also argues the statute should be considered void under the doctrine known as “desuetude,” which renders criminal laws void when they fall into disuse, because it has not been enforced in over half a century.
Morrisey, who was one of the defendants in the case along with Kanawha County Prosecuting Attorney Charles Miller, decried Salango's decision.
“This is a dark day for West Virginia,” Morrisey said shortly after the hearing. “We will appeal this decision to the Supreme Court of Appeals as soon as legally possible.
"As a strong pro-life advocate, I am committed to protecting unborn babies to the fullest extent possible under the law, and I will not rest until this injunction is lifted. The current law on the books calls for the protection of life.”
For now, however, abortions are legal once again in the state.
Morrisey also said it isn't possible to claim newer abortion regulations repeal the state's law.
"The statutes do not irreconcilably conflict since civil laws dealt with numerous aspects of unregulated post-Roe abortion, offered alternative enforcement methods in the face of Roe’s restrictions on the criminal statute and are similar to other situations where criminal and civil statutes dealing with the same topic exist in West Virginia law," his office states. "Also, the Legislature never intended to repeal and replace the Act when it passed post-Roe regulations, and the historical evidence proves this."
Morrisey also says prosecutors didn't just decide to stop prosecuting abortions in 1973 when Roe v. Wade was handed down.
"Instead, the law went unenforced only because courts said that, under Roe, the criminal statute was unenforceable," his office said. "Despite this, there was never legislative action to remove the act from the West Virginia Code. Now that West Virginia once again has the freedom to address abortion as it best sees fit and enforce its laws, the state and the public have a strong interest in seeing a duly enacted and non-repealed statute recognized as in force."
When the U.S. Supreme Court overturned Roe v. Wade last month with its Dobbs v. Jackson Women's Health Organization ruling, Women's Health Center of West Virginia was forced to suspend abortions.
“The impacts of abortion being pushed out of reach for the last month have been devastating," WHCWV Executive Director Katie Quiñonez said. "Our patients deserve more from their elected leaders.
“Today’s decision is a sigh of relief, and means we can once again serve the people who reach out to us for abortion services. Make no mistake: Essential health care shouldn’t depend on the whims of a court or politicians, it should be based on compassion and what’s best for one’s life and future. We won’t stop fighting for the ability to serve our patients with the care they need — not now, and not ever.”
Alexa Kolbi-Molinas, deputy director of the American Civil Liberties Union Reproductive Freedom Project, agreed.
“We applaud the court’s decision to block West Virginia’s archaic abortion ban, which has caused weeks of chaos and devastation in the state for people who need abortion care since Roe was overturned,” she said. “The impacts of forcing women and pregnant people to carry to term and give birth against their will has life-altering consequences, including grappling with serious health risks, making it harder to escape poverty, and derailing education and career plans.
"While today’s decision is an important first step, the fight is not over and we’re determined to use every tool at our disposal along the way to protect abortion access for West Virginians.”
Loree Stark, legal director of ACLU West Virginia, also praised the temporary injunction.
“Today’s ruling provides much-needed clarity on a law on a law that dates back more than 150 years ,” she said. “This is a win not just for the plaintiffs, but for all West Virginians.”
An unnamed physician, his patients, licensed social worker Debra Beatty, women’s health nurse practitioner Danielle Maness and Quiñonez also are listed as plaintiffs in the combined lawsuits. The American Civil Liberties Union, ACLU of West Virginia, Mountain State Justice and the Cooley law firm are representing the plaintiffs. Miller was represented by Assistant Prosecuting Attorney Don Morris, and the AG's office was represented by Deputy AG Curtis Capehart.
Kanawha Circuit Court case number 22-C-556