CHARLESTON — West Virginia Attorney General Patrick Morrisey formally filed a notice of appeal of a preliminary injunction on the state's abortion law.
Morrisey said as a pro-life advocate, he took his duty to protect innocent lives seriously.
"This starts the process of correcting this erroneous ruling by a Kanawha County Circuit Court judge that did nothing but jeopardize the innocent lives of unborn babies," Morrisey said in a news release. "I have a duty to defend the laws of the state, and this law currently on the books calls for the protection of innocent lives. As a strong pro-life advocate, I take that very seriously."
Morrisey filed the notice with the West Virginia Supreme Court of Appeals, arguing that West Virginia wants to protect unborn human life.
"The stakes here are sky-high," he wrote in the appeal. "Every day the lower court’s injunction remains in effect, 4 unborn children will lose their lives. And that injunction is based on faulty legal theories, including one Respondents did not even brief below. The Attorney General asks this Court to reverse."
West Virginia's abortion ban was passed by Virginia in 1849 and adopted through West Virginia's constitution when it became a state in 1863, the notice states. The state consistently enforced the law until the U.S. Supreme Court decided Roe v. Wade in 1973.
However, the Legislature never repealed the abortion ban act and refused to do so multiple times.
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 "The lower court declared that the State’s oldest law protecting unborn human life has been impliedly repealed, is void for desuetude, and violates due process.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."
Last week at a hearing, 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. 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.
West Virginia Supreme Court of Appeals case number: 22-576