CHARLESTON — A day after a judge granted an injunction, West Virginia Attorney General Patrick Morrisey has filed an emergency motion for a stay regarding the state's abortion law.
Morrisey's office filed the motion July 19 with the state Supreme Court for a stay pending appeal of the preliminary injunction granted July 18 by a Kanawha Circuit Judge Tera Salango against the state's abortion law that has been on the books since 1849 when the state still was part of Virginia.
“Every week the lower court’s injunction is in place, 25 innocent, unborn children will lose their lives. Each of those deaths irreparably harms the state’s interest in protecting all unborn human life within its borders,” the emergency motion for stay states. “West Virginia has waited 50 years to be allowed to once again fulfill its moral commitment to protect the unborn. This Court should stay the lower court’s preliminary injunction immediately and allow the State to enforce the Act while this suit is litigated on appeal.”
Tera Salango
| courtswv.gov
The motion requests action by 9 a.m. Wednesday.
During Monday's hearing when Salango issued an oral preliminary injunction, Deputy AG Curtis Capehart made an oral motion for stay. But Salango declined to request it. Morrisey did so later in the day. On Tuesday, Morrisey's office filed the stay request with the Supreme Court.
“Today, we filed our request for a stay at the West Virginia Supreme Court of Appeals of Kanawha County Circuit Court Judge Tera Salango’s wrongly-decided ruling,” Morrisey said in announcing the motion to stay. “We believe it’s critical to file for an immediate stay in light of this flawed decision and seek this emergency measure to prevent immediate loss of precious life.
“When life is in jeopardy, no effort can be spared to protect it, including seeking whatever stay can be had. The unborn children of our state can’t wait.”
Attorneys for the Alliance Defending Freedom are assisting Morrisey and his office with the appeal.
“For 173 years, West Virginians have sought to protect life, and now that Roe is overruled, the state is eager to preserve the innocent lives of the unborn beginning at conception,” ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch said in a press release. “We’re pleased to serve alongside Attorney General Morrisey in defending the state’s duly-enacted 1870 law that will allow West Virginians to protect the lives of mothers and their children."
At Monday's hearing, 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. The law prescribes three to 10 years in prison for those involved in performing an abortion.
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.
For now, however, abortions are legal once again in the state.
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.
West Virginia Supreme Court of Appeals case number TBD (Kanawha Circuit Court case number 22-C-556)