Judge’s order halting criminal abortion law cites comments by AG, governor

A Kanawha circuit judge has filed a written order reflecting an injunction of West Virginia’s felony abortion law from the 1800s, with the judge concluding the law has been dormant for decades and conflicts with more recent additions to state code.

Kanawha Circuit Judge Tera Salango verbally ordered that the old law should not be enforced following a hearing Monday, and this puts that in writing.

Tera Salango

In laying out her reasoning, Salango cites similar conclusions by West Virginia’s governor and attorney general about the clarity of West Virginia’s criminal abortion law that remained on the books decades after Roe vs. Wade provided a federal guarantee of abortion rights.

The Attorney General’s Office is a defendant in the lawsuit over the criminal abortion statute. Attorney General Patrick Morrisey has said that law sprung back into effect when the U.S. Supreme Court rolled back the federal abortion protections in its recent Dobbs ruling. And Morrisey has said the old state law is defensible.

But Morrisey has also concluded West Virginia would be best served if the Legislature would institute a comprehensive abortion policy.

The judge took note, writing: “In the weeks leading up to Dobbs and in the hours after the decision was issued, Defendant Morrisey and other officials issued public statements that have created uncertainty over the enforceability of the Criminal Abortion Ban, and reinforced Plaintiffs’ fears that they face a credible threat of prosecution should they continue to provide abortion care in West Virginia.

“Through their public statements, Defendants and other officials expressed their concern that the Criminal Abortion Ban and the modem statutory regime cannot co-exist, and their belief that legislative action is required to alleviate the current discordance.”

Patrick Morrisey

The Attorney General has asked both Salango and the state Supreme Court to stay the circuit judge’s ruling while also filing official notice of appeal. This week, Morrisey decried the judge’s ruling.

“This is a dark day for West Virginia,” stated Morrisey, a Republican. “As a strong pro-life advocate, I am committed to protecting unborn babies to the fullest extent possible under the law, and I will not rest until this injunction is lifted. The current law on the books calls for the protection of life.”

Jim Justice

Similarly, Gov. Jim Justice this week knocked the judge’s ruling while also calling the criminal abortion law “archaic” and saying state officials need to work to clarify it. Salango’s husband, Ben, ran against Justice in 2020 as the Democratic candidate for governor.

“I think it’s political theater. I think the ultimate decision was made by the United States Supreme Court,” Justice, a Republican, said this week. “Now there’s going to be hoops jumped through from our Attorney General and appealing it immediately to the Supreme Court and the Supreme Court weighing in and making decisions on what they think the law should be.

“We need to have a special session to clean up some of the old, old ancient law and everything that are outdated to say the least. We will do that as soon as I get the thumbs up that the Legislature is really ready. We’re trying to give them some rope to get themselves ready and to do all the work that they have to do because there are so many sensitive issues.”

The governor concluded, “We really need to stop the theatrics, but we do need to clean up the law, and we do need a special session to clean it up.”

The judge agreed that the criminal abortion law is outdated and used state officials’ own words to make that point.

Salango’s order quotes the governor at various points as questioning “if what we have on the books is adequate or if there is a need to call a special session,” that “we need to move for further and more detailed clarification” and that “the laws are archaic, they’re ancient and everything. We’ve got to clean it up.”

Salango’s order first cites public statements by Morrisey after the Supreme Court’s Dobbs draft was leaked when he said on Newsmax “some of the stuff that goes back to the 1920s or the 1800s, it’s unclear how that would take effect. It all depends upon the actual text of the … decision presumably replacing Roe and then the State’s Constitution and laws.”

On June 29, the Attorney General issued a legal opinion about Dobbs and West Virginia’s laws. One concern was that “courts might find that earlier enactments were impliedly repealed,” which wound up being a main argument by plaintiffs.

“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.

Prominent state legislators have questioned whether the Attorney General’s public remarks have made it easier to challenge the criminal abortion statute in court.

Roger Hanshaw

In a July 1 memo to delegates, House Speaker Roger Hanshaw described laying the groundwork to update the state’s laws on abortion. But Hanshaw also questioned whether Morrisey’s comments might complicate matters in court.

“What I find most concerning or all of us is that the opinion publicly issued by the Attorney General effectively supports the case made by the plaintiff suing the Attorney General,” wrote Hanshaw, R-Clay.

“It is now nearly impossible for me to imagine how the Attorney General can respond to the lawsuit in any way that effectively advocates for the position of the House, his client.”

In response to Hanshaw, Morrisey said his office’s role is to weigh in on matters of legal policy for the state.

“This is a critical and timely issue for West Virginia, and in light of the confusion in the days after the U.S. Supreme Court’s decision, I was unwilling to stand aside because other members of state government would have preferred a different approach,” Morrisey stated then.

“My Office is vigorously defending the challenged law. We have a duty to the people of West Virginia to do just that. I have been sued in my official capacity as Attorney General.”

Brandon Steele

Delegate Brandon Steele, chairman of the House Government Organization Committee, wrote a critical opinion piece titled “Attorney General Morrisey Deals Blow to Pro Life Movement with Short-Sighted Memorandum.” This week, Steele doubled down on statewide radio.

“This was set up by the Attorney General’s misplaced and misguided legal memorandum from a few weeks back, the 15-page memo where he, himself, called the law ‘vague,’” Steele, R-Raleigh, said on MetroNews’ “Talkline.”

“He knew he was going to have to defend the statute, and he released the memorandum anyway. So how could he have gone in to court and successfully argued that it wasn’t vague when the case had already been filed, he already knew his office was going to have to go in and defend it, and he releases a memo basically agreeing with the opposition?”

Morrisey responded to that criticism, too,

“We did the right thing by letting people know the state of abortion laws in West Virginia and will not hide as we seek to protect as many lives as possible,” Morrisey stated. “We will defend the unborn children of our state and ask Delegate Steele to focus on the same.”

The Attorney General’s office has started the appeal process, restating the position it took in circuit court — that West Virginia’s felony abortion law was only shelved because the Roe vs. Wade ruling went into effect, that in the intervening years lawmakers never moved to repeal it and that laws passed in the meantime were meant to restrict abortion as much as possible.

” Every week, 25 unborn children will lose their lives until the lower court’s injunction is stayed or dissolved,” the Attorney General’s Office wrote in a memorandum filed along with its notice of appeal to the Supreme Court.

“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.”

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