CHARLESTON — West Virginia Attorney General Patrick Morrisey’s office has asked a federal court to deny a preliminary injunction sought by parties challenging the state’s abortion law.
The lawsuit, filed February 1 by the Women’s Health Center of West Virginia against the president and secretary of the West Virginia Board of Medicine, claims the state’s new abortion law violates the 14th Amendment of the U.S. Constitution. The center is asking a federal court judge to halt enforcement of the new law pending the outcome of the lawsuit.
“The Supreme Court was very clear when it overturned Roe v. Wade — abortion policy is returned to the states and their elected representatives,” Morrisey said in a press release. “This law is clearly constitutional, and we stand ready to defend it.”
Morrisey
In its response filed February 27, the AG’s office also said the plaintiffs “are not likely to succeed on the merits” and they “do not have standing.” District Judge Irene Berger just recently granted Morrisey’s motion to intervene in the case.
“State abortion laws are ‘entitled to a strong presumption of validity’ and ‘must be sustained if there is a rational basis on which the Legislature could have thought that it would serve legitimate state interests,’ including ‘preservation of prenatal life at all stages of development’ and ‘the protection of maternal health and safety,’” Morrisey’s 24-page response states. “West Virginia enacted commonsense laws to protect the health and safety of women and children.”
The response says the case “attacks two modest regulations of the medical profession” hoping to unwind the new post-Dobbs statutory regime and revive elective abortion on demand in West Virginia.
“And they seek to do so by asking for extraordinary relief against duly enacted health and safety laws in a policy area where legislatures receive maximum deference,” the response states. “Plaintiffs fail on each prong of the injunctive standard. They are unlikely to succeed on their strained claim that it is irrational to ensure surgical abortions are performed in a hospital setting or to require physicians initiating or performing abortions to possess admitting privileges to a hospital. They have not shown irreparable harm – particularly when they can identify no constitutional right to perform or obtain an abortion.
“And both the balance of equities and public interest tip strongly in favor of permitting duly enacted health-and-safety laws to remain in effect. The Supreme Court returned abortion policy to the hands of West Virginia’s elected representatives, and plaintiffs’ motion for a preliminary injunction fails to establish support for extraordinary relief in the face of the legitimate exercise of state powers.
Abortion providers and advocates filed the federal lawsuit earlier this month challenging West Virginia’s near-total abortion ban passed into law last year. The complaint calls multiple provisions of House Bill 302 “irrational and unconstitutional.”
The plaintiffs in the case are Women’s Health Center of West Virginia and an anonymous local abortion provider. They filed the complaint against Ashish P. Sheth, president of the West Virginia Board of Medicine, and Matthew Christiansen, secretary of the WVBOM. WHC is the only abortion facility in the state.
The plaintiffs seek an injunction blocking the entire ban while providers make their case in court. The complaint saying any portion of the law is determined to be unconstitutional, the entire law must be struck down.
“HB 302 was rushed through the West Virginia Legislature in under 24 hours, in the aftermath of the Supreme Court overturning Roe v. Wade,” the American Civil Liberties Union said in a press release about the lawsuit. “Since HB 302 took effect, West Virginians have been forced to either travel across state lines to access the essential care they need — or find themselves forced into pregnancy and giving birth against their will.”
In the 33-page complaint, the plaintiffs say HB 302 “severely restricts the circumstances in which abortion can be provided and imposes new, irrational requirements on how abortion care can be provided.”
Those limitations include requiring all abortion procedures be performed in a hospital rather than in an outpatient setting and that all physicians who provide medication abortion have hospital privileges somewhere in West Virginia. The complaint also says the law contains a comprehensive non-severability scheme.
“Procedural abortion is one of the safest outpatient procedures provided today — far safer than, for example, colonoscopies — and has been almost exclusively provided in the outpatient setting in West Virginia for nearly 50 years,” the complaint states. “In fact, for nearly half a century, court decisions have repeatedly established that there is no justification for such hospitalization requirements.
“There is simply no legitimate, rational reason to suddenly restrict this safe, routine, outpatient gynecological care to the hospital setting.”
It also says the privileges requirement is irrational because “it effectively applies only to medication abortion.
“Hospital privileges are granted to physicians who perform procedures that require hospital-level resources or who manage significant, chronic illnesses requiring frequent inpatient treatment, such as cardiac surgeons or oncologists — not for the routine prescription of medications,” the complaint states. “The lack of any logical relationship between the privileges requirement and legitimate state interest here is all the more striking given that the medications used in a medication abortion are proven to be safer than, for example, Tylenol and penicillin.
“Here too, courts have routinely recognized that there is no conceivable justification for requiring hospital privileges for any form of abortion care, let alone for medication abortion only.”
The plaintiffs say HB 302 has made it impossible for them to continue to provide any abortion care at all.
“This has inflicted and is continuing to inflict irreparable harm not only on plaintiffs’ mission, purpose and ability to practice their profession and their constitutional rights, but also on the health and wellbeing of their patients and West Virginians seeking access to this essential care,” the complaint states. “Accordingly, plaintiffs seek declaratory and preliminary and permanent injunctive relief against the enforcement of HB 302.”
The complaint details the legislative process to pass HB 302 following the U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
It also explains how the plaintiffs in this case filed a lawsuit in Kanawha Circuit Court on June 29 seeking to enjoin enforcement of the criminal abortion ban that was on the books since 1849 when West Virginia still was part of Virginia.
And it details Gov. Jim Justice calling a special legislative session in July to consider new abortion legislation that resulted in the passage of HB 302 in September. It took effect immediately upon passage.
“In the span of a single day, both chambers of the Legislature introduced, debated and passed the version of HB 302 that is at issue in this lawsuit,” the complaint states. “At no point did the Legislature consider or receive any testimony or evidence linking the hospitalization or privilege requirements to any legitimate interest in the health or safety of abortion patients.
“Instead, Senator Robert Karnes acknowledged their purpose was to ‘shut down’ WHC as the only remaining provider of abortion services in the state. …
“Senator (Eric) Tarr similarly stated, ‘I’m confident this bill shuts down the abortion clinic.”
Plaintiffs and attorneys involved in the filing of the complaint issues statements about it.
“Every person deserves to access the critical care they need, but this law pushes essential abortion care out of reach,” WHC Executive Director Katie Quiñonez said. “With each day this ban remains in effect, we are forced to turn patients away because politicians took away their power to make the best medical decisions for themselves during pregnancy.
“Our providers took an oath to serve patients in every way possible, but the extreme restrictions in this law prevent us from helping our patients make the best medical decisions for themselves and their families. Whether it’s in the statehouse or courthouse, we will never stop fighting to ensure our patients can access essential care they need.”
ACLU of West Virginia Managing Attorney Aubrey Sparks said the legislative path for the law is “one of the least transparent in recent memory.”
“Every day that this cruel law remains on the books is a day that West Virginians are being denied critical, lifesaving health care,” Sparks said.
Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said her group won’t stop fighting.
“Make no mistake: The cruel and medically unjustified provisions of this law effectively push care out of reach entirely, and the so-called exceptions are just an illusion,” Kolbi-Molinas said. “No one should be forced to carry a pregnancy to term against their will and we’ll continue fighting until everyone can get the care they need — regardless of where they live.”
The plaintiffs accuse the defendants of violating the plaintiffs’ and their patients’ due process and equal protection rights under the Fourteenth Amendment to the U.S. Constitution.
In addition to the injunctive relief, the plaintiffs seek attorney fees, court costs and other relief.
The plaintiffs are being represented by Sparks and Nicholas Ward of ACLU-WV, Kolbi-Molinas and Rachel Reeves of the ACLU, Bren J. Pomponio of Mountain State Justice and a host of attorneys from the Cooley law firm offices in Boston, San Francisco and New York.
The AG’s office is being represented by Chief Deputy AG Douglas P. Buffington II and Deputy AG Curtis R.A. Capehart.
U.S. District Court for the Southern District of West Virginia case number 2:23-cv-00079