West Virginia’s longstanding law that makes abortion a felony is being challenged in court while the state Attorney General has concluded the law is valid but could also stand some legislative attention.
Both developments occurred today as West Virginia grapples with the sudden reversal of 50 years of federally-guaranteed right to abortion up against the century-old state law that makes providing abortions a felony.
The new constitutional reality, West Virginia’s old law and newer abortion statutes seem primed both for court challenges and legislative review.
“The Attorney General stands ready to defend these statutes to their fullest extent. But courts may apply them in unexpected ways,” the office wrote in its legal review.
“For that reason, the Legislature is advised to re-enact a comprehensive framework governing abortions to avoid any potential variances among prohibitions, definitions, scope, exceptions, or otherwise.”
Medical providers and advocates already filed a lawsuit in Kanawha Circuit Court today, contending the old law no longer holds up because so many new laws that conflict with it have been passed since it was last in effect.
The lawsuit asks for a temporary restraining order and, later, a permanent injunction.
The Attorney General’s Office then filed a separate legal opinion about the Supreme Court’s ruling and West Virginia abortion laws, making reference to today’s lawsuit.
“Assuredly, we have strong arguments against this challenge. But the statute would still benefit from the Legislature’s further attention,” the Attorney General’s Office wrote.
The West Virginia law that dates back to the 1800s remained on the books but was inactive following the Roe vs. Wade ruling that established a federal, guaranteed right to abortion.
After the Supreme Court reversed Roe vs. Wade last week, focus turned to whether the West Virginia law would be considered active. Penalties under the felony range from three to 10 years for providing an abortion. The state’s only abortion provider, Women’s Health Center of West Virginia, halted abortions out of concern of prosecution.
The organizations that filed the lawsuit contend the old law was used not only to punish doctors or nurses but sometimes the person seeking the abortion or their partners.
The lawsuit argues the statute should be considered void under the doctrine of “repeal by implication,” a legal concept that an older law is made void when a newer, conflicting law is passed.
The organizations that filed suit contend West Virginia lawmakers have passed law after law over the years to regulate abortion during the period it was considered legal, and many of those conflict with the provisions of the criminal abortion statute, said Loree Stark, legal director of the American Civil Liberties Union-West Virginia.
The lawsuit notes that laws passed more recently have established an informed consent process for abortion, authorized the use of public funds for abortion under certain circumstances, and permit most pre-viability abortions, all without imposing any criminal penalties on providers or patients.
“We will not stand by while this state is dragged back to the 1800s,” Stark stated. “Every day that uncertainty remains about the enforceability of this statute is another day that West Virginians are being denied critical, lifesaving healthcare. That’s why we are asking the Court to make it clear this law cannot be enforced.”
The American Civil Liberties Union, ACLU of West Virginia, Mountain State Justice and the Cooley law firm filed the lawsuit on behalf of Women’s Health Center of West Virginia and its staff.
“The law in question has not been enforced for 50 years,” said Sarah K. Brown, Mountain State Justice’s executive director. “There should never be uncertainty between West Virginians and their medical providers.”
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 Attorney General Patrick Morrisey had said his office would examine the Supreme Court’s Dobbs ruling and apply it to the state’s laws on abortion.
The opinion issued by the Attorney General’s Office today suggests West Virginia courts will construe statutes—at least “where it is possible to do so” — “to harmonize and reconcile laws, and to adopt that construction of a statutory provision which
harmonizes and reconciles it with other statutory provisions.”
In other words, the courts system’s starting point would be to see the various abortion laws as working in concert. In some cases, that would mean considering one statute as dominant over another. In other instances, the courts might favor more recent statutes over older ones. Or, the Attorney General acknowledged, courts might conclude some statutes are implied repealed.
But without any way to say for certain how the courts would interpret West Virginia’s abortion laws, the Attorney General suggested legislative action is a good idea.
“An 1849 law criminalizing the provision of abortion for a health-care provider, and arguably the woman, is on the books and enforceable. So are many other abortion-related statutes,” the Attorney General wrote.
“However, the West Virginia Legislature is strongly advised to amend the laws in our State to provide for clear prohibitions on abortion that are consistent with Dobbs.”
House Speaker Roger Hanshaw and Senate President Craig Blair, both Republicans, have acknowledged that West Virginia’s law now includes sections that need clarification.
“Abortion is addressed in numerous statutes in West Virginia Code, and now our attorneys will need to further review those statutes to determine how they apply in light of this decision,” the legislative leaders stated after the Supreme Court ruling came out, going on to say the legislative branch would work with the governor’s team.