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Attorney General asks Supreme Court to speed up appeal steps on abortion law

West Virginia’s Attorney General has taken more steps to appeal a judge’s injunction of the state’s felony abortion law, including asking for a state Supreme Court review on an expedited timeline.

Patrick Morrisey

“This starts the process of correcting this erroneous ruling by a Kanawha County Circuit Court judge that did nothing but jeopardize the innocent lives of unborn babies,” Attorney General Patrick Morrisey stated Friday evening.

“I have a duty to defend the laws of the state, and this law currently on the books calls for the protection of innocent lives. As a strong pro-life advocate, I take that very seriously.”

The court battle is over West Virginia’s criminal abortion statute dating back to the 1800s. The U.S. Supreme Court’s recent decision that rolled back national abortion rights sent the issue to state governments.

West Virginia’s law that imposed incarceration of three to 10 years for abortion had been unenforced in the half-century following the Roe vs. Wade ruling that established the right to abortion at the federal level.

With the newer Supreme Court ruling, the Women’s Health Center of West Virginia stopped performing abortions over worries of prosecution.

Lawyers for the Women’s Health Center argued that, despite those worries, the old law should no longer be valid because it had not been enforced for so long and because newer laws that restricted abortion while also assuming its legality had been passed in more recent years.

The Attorney General argued that the old law is valid and enforceable. The Attorney General’s Office said the Legislature never took action to repeal the old law and passed newer laws to regulate abortion with the intent of restricting the procedure as much as possible.

“To address the dangers left by this wrong but binding legal barrier, the Legislature passed a series of supplemental civil laws protecting women and unborn human life, consistent with Roe’s limits. These laws were meant to regulate abortions that allowed by Roe, not to repeal the 1870 Act,” the Attorney General wrote in court filings.

Kanawha Circuit Judge Tera Salango last week ordered an injunction to halt enforcement of the old law, saying it is vague and that the Legislature hasn’t made its intent clear.

Women’s Health Center of West Virginia has said it has been contacting patients and preparing to resume abortions this coming week.

The Attorney General’s Office has asked for a stay of her order while also pursuing an appeal to the state Supreme Court. Justices on the high court have not yet responded to the request for stay.

“West Virginia seeks to protect unborn human life,” the Attorney General’s Office wrote in the latest filing to the state Supreme Court.

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.

Both the Attorney General and the plaintiffs in the legal challenge to the law have concluded that it could be interpreted for prosecuting not only medical providers but also pregnant women and those who provide assistance in getting an abortion.

“This law is straightforward and was never repealed,” Morrisey stated Friday evening. “It is my hope that the Supreme Court moves as expeditiously as possible to resolve this case and reflect the clear intent of the Legislature to protect innocent life.”

The state Supreme Court put out a schedule for the appeal earlier this week that has filing deadlines for written briefs through next January. After that, justices would consider the appeal.

The latest motion by the Attorney General asks to speed up that schedule.

“The Attorney General asks this Court to set oral argument in this matter as soon as possible,” the state office requested. “The issues raised here are critically important to the public and deserve an immediate hearing.”

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