CHARLESTON — A scheduling order has been filed in an appeal to the West Virginia Supreme Court regarding the state's abortion law.
"The deadline for perfecting the appeal is November 21, 2022, with the filing of the brief and appendix," the July 21 scheduling order states. "If the appeal is not perfected on or before November 21, 2022, the appeal will be dismissed."
A notice of appeal was filed earlier Thursday after a hearing was held on July 18.
Attorney General Patrick Morrisey appealed the interlocutory order entering a preliminary injunction. He argues the Supreme Court can hear the appeal because of the powers given in the state constitution.
Morrisey asked the West Virginia Supreme Court to immediately stay the preliminary injunction, reverse the lower court, dissolve the preliminary injunction, and allow the state to again enforce its 1870 Act.
Morrisey argued the lower court erred by holding that the plaintiffs were likely to succeed on their implied-repeal claim and by holding that the plaintiffs were likely to succeed on their void-for-desuetude claim, among other arguments.
"This appeal raises issues of immense public concern," the notice states. "The lower court declared that the State’s oldest law protecting unborn human life has been impliedly repealed, is void for desuetude, and violates due process. It also preliminarily enjoined the Defendants below from enforcing the law. Every week, 25 unborn children will lose their lives until the lower court’s injunction is stayed or dissolved. The Court should address the critical questions raised in this appeal, correct the lower court’s glaring legal errors, and dissolve the preliminary injunction entered below."
During Monday's hearing when Circuit Judge Tera 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.
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.
West Virginia Supreme Court of Appeals case number: 22-576