Attorney General contends old abortion law is valid and consistent with legislative intent

West Virginia’s Attorney General argues in new court filings that the state’s felony abortion law that sprung back after being inactive for a half century should be considered in effect.

The Attorney General contends that laws passed after the Supreme Court’s Roe vs. Wade ruling were meant to regulate and restrict abortion. Now that the U.S. Supreme Court has overturned Roe vs. Wade and sent abortion policy back to the states, the Attorney General says the state Legislature’s intent has clearly been to restrict abortion to the extent possible.

Patrick Morrisey

“It is counter-historical to say that the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed,” lawyers for the office wrote in filings signed by Attorney General Patrick Morrisey.

Following the U.S. Supreme Court’s ruling that left abortion policy to the states, West Virginia’s revived felony abortion law faces an early legal test next Monday in Kanawha Circuit Court. A coalition of abortion rights advocates is asking for an injunction to halt the old law from going into effect.

Those groups argue that the laws passed to regulate abortion in the years after Roe — laws limiting the number of weeks abortion would be legal, for example, or parental notification policies — assume abortion is legal and are in conflict with the felony law that dates to the 1800s.

Loree Stark

Loree Stark, legal director for American Civil Liberties Union of West Virginia, told a crowd at the Capitol on Saturday that the state law is “not only archaic, it’s cruel.”

“The statute itself is so broad, it’s almost impossible to determine what conduct it criminalizes,” Stark said.

“And we’ve watched this Legislature over the past several years pass restriction after restriction on abortion. So the question is now, how can there be this law from the 1800s on the books that completely criminalizes abortion — how can that exist with these other restrictions that the Legislature has passed over the past over the last few years?”

The Attorney General’s Office, in a response and memorandum filed in the injunction case, says no such conflict exists because legislative intent has been to limit abortion to the extent possible.

“Post-Roe, the reality of constitutionally guaranteed abortion access created a regulatory vacuum that the Legislature filled with new civil statutes,” the Attorney General wrote.

“But these post-Roe regulations are not inconsistent with the Act; they served to ensure the health of mothers and the unborn in a post-Roe world.”

The Attorney General wrote, “The logical explanation for the Act’s continued presence in the Code is simple: there was no intent to repeal it.”

The law on the books in West Virginia dates back to the earliest days of the state. It describes three to 10 years imprisonment for abortion. There is an exception for the life of the mother “in good faith.”

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.

“Legalized abortion in West Virginia was a function of federal judicial remedy, not non-enforcement by West Virginia officials or legislative repeal. Now that Roe has been overturned, the Act should be viewed as a measure that was only unenforceable during the time that Roe remained in force,” the Attorney General wrote.

The motion asking for the old law to be halted was filed on behalf of several groups, including the Women’s Health Center of West Virginia, which stopped providing abortions out of concern of prosecution. The filing includes affidavits by medical professionals who described worry about criminal penalties.

But the Attorney General’s Office contends those groups shouldn’t have standing for the injunction, in part because specific individuals seeking abortions aren’t among the plaintiffs.

“There is no irreparable harm to Plaintiffs for the Court to remedy here. Plaintiffs have no right under West Virginia law to perform abortions, thus they cannot claim any specific interest in performing the procedure,” the Attorney General wrote.

“Plaintiffs do not have special standing to bring a claim on behalf of all pregnant women in West Virginia seeking an abortion so they cannot claim any irreparable injury to pregnant women as it relates to their request for preliminary injunction.”

On balance, the Attorney General wrote, public interest weighs in favor of denying an injunction that would halt the revived felony abortion law.

“In particular, the public has an interest in ensuring its properly-made laws, such as the act, are enforced,” the Attorney General wrote.

“Indeed, the history and substance of the law show that there is a special public interest at stake: protecting the most vulnerable in society – unborn children – from harm.”

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