In 1975, federal appeals judges concluded that West Virginia’s law prohibiting abortions was unconstitutional because of Roe vs. Wade and ordered that an injunction go into effect.
That injunction appears to still be in place, despite the U.S. Supreme Court rolling back the underlying right to abortion in Roe last week.
Two options for dealing with the old injunction would be to challenge it in court or for state legislators to write a new law that reflects the constitutional shift.
West Virginia has had a law dating back to the 1800s that makes providing an abortion a felony punishable by three to 10 years imprisonment.
“Since there’s an injunction that means that law cannot be enforced right now, which means either someone has to go into court and have the injunction lifted because of the intervening Supreme Court decision, Dobbs, or the West Virginia Legislature needs to make some law,” said Anne Marie Lofaso, professor at the West Virginia University College of Law.
“My guess is that going in and making a motion to lift the injunction would work because there’s been the intervening law, Dobbs. But we don’t know.”
What does the injunction within West Virginia's state laws regarding abortion mean? @AnneMarieLofaso and @HoppyKercheval discuss what this all means. WATCH: https://t.co/yCFQ3nDJuy pic.twitter.com/aQO1iSoQ5Q
— MetroNews (@WVMetroNews) June 28, 2022
The law on the books in West Virginia dates back to the earliest days of the state. The law says:
Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.
West Virginia’s last abortion provider, just a couple of hours after the Supreme Court’s ruling, announced it would have to stop. Leaders at the Women’s Health Center of West Virginia expressed concern that prosecutors could begin trying to immediately enforce an abortion ban based on the state’s 1882 law.
Loree Stark, the legal director of ACLU West Virginia, said during a Friday press conference that lawyers would need to analyze the 200-page Supreme Court ruling.
“Because West Virginia legislators have failed to expressly repeal the statute on the books in West Virginia that does criminalize abortion, an archaic statute — it’s abhorrent — what we’re looking at is exploring aggressively all the different avenues that can be taken, reviewing the decision in its entirely, analyzing how it relates to federal law and to the state law here,” Stark said.
The injunction that was handed down by the Fourth Circuit Court of Appeals in 1975 dealt with a 21-year-old unmarried student who was seeking an abortion during the first trimester of pregnancy. Her request to have the abortion performed at Charleston Area Medical Center’s Memorial Division was denied based on the state law that had not been repealed.
The request for injunction initially was denied at the circuit court level.
Judges with the Fourth Circuit Court of Appeals then took up the case and determined that under Roe vs. Wade the unconstitutionality of West Virginia’s law was clear. The appeals judges also cited Doe vs. Bolton, a case overturning abortion law in Georgia that was released the same day as Roe vs. Wade.
“To reiterate,” the appeals judges wrote, ” we hold CAMC’s anti-abortion policy and the West Virginia criminal abortion statute upon which the policy rests to be irreconcilable with Roe v. Wade and Doe v. Bolton and therefore unconstitutional.”
West Virginia Attorney General Patrick Morrisey, a Republican, has said his office will examine the ruling and produce its own legal analysis of the effect on state law.
Gov. Jim Justice said in a briefing today that the state shouldn’t rush in to quick decisions on abortion law.
“I stand for logic and reason,” he said. “And we have to have logic and reason as we discuss and approach all these different aspects of the impact of Roe v. Wade. This has to take some time. We have laws on the books right now, but this has to take some time to where we have extended discussions with the Attorney General, as well as the Legislature.”
In a joint statement released Friday, Senate President Craig Blair and House Speaker Roger Hanshaw, both Republicans, said attorneys are assessing West Virginia code and how it would interact with the Supreme Court decision.
Hanshaw today reiterated a cautious approach.
“Rather than a sense of ‘We must act quickly,’ there’s a sense of ‘We must act correctly,'” Hanshaw said on MetroNews’ “Talkline” today. “We’ve got to know what our law is and then we’ve got to say ‘Does it actually say what we want the public policy of West Virginia to be?'”
“Rather than act quickly, I want us to act correctly and methodically.”
Is there a sense of urgency to provide legal clarity regarding the abortion laws in West Virginia? @SpeakerHanshaw answers that question and more with @HoppyKercheval. WATCH: https://t.co/yCFQ3nDJuy pic.twitter.com/HMutk4YWMe
— MetroNews (@WVMetroNews) June 28, 2022
Senator Amy Nichole Grady, R-Mason, said it’s important for the law to be clarified and defensible in court.
Speaking on “580 Live” on WCHS Radio, Grady said legislative attorneys “want to make sure that everything is clarified to make sure that there is no court challenge as to what the law is.”