West Virginia's 150-year-old abortion ban blocked by judge
A judge in West Virginia's capital blocked enforcement of the state's 150-year-old abortion ban Monday, opening the door for abortions to resume in the state, at least for now. Kanawha County Circuit Court Judge Tera L. Salango granted the Women's Health Center of West Virginia a preliminary injunction against the 1800s-era ban, saying that in the absence of action by the court, the state's sole abortion clinic and its patients, "especially those who are impregnated as a result of a rape or incest, are suffering irreparable harm."
Attorney General Patrick Morrisey decried the ruling, calling it "a dark day for West Virginia." He said his office will appeal the decision to the state Supreme Court.
West Virginia has a state law on the books dating back to the 1800s making performing or obtaining an abortion a felony, punishable by up to a decade in prison. It provides an exception for cases in which a pregnant person's life is at risk.
Lawyers for the Women's Health Center — the state's only abortion clinic — argued that the old law is void because it has not been enforced in more than 50 years and has been superseded by a slew of modern laws regulating abortion that acknowledge a woman's right to the procedure. One example is West Virginia's 2015 law, which allows abortions until 20 weeks.
Salango agreed, saying the recent laws enacted by the state legislature "hopelessly conflict with the criminal abortion ban" and that it would be "inequitable" to allow conflicting laws to remain on the books.
"The code is replete with examples of undeniable conflicts in the law that appear fundamental and irreconcilable, making the law incompatible by any reading," she said of the criminal abortion ban. "Perhaps when it was drafted, that legislation was sufficient. However, in today's world, it is simply too vague to be applied."
The Women's Health Center of West Virginia had suspended abortion services June 24, the day the U.S. Supreme Court overturned Roe v. Wade. Staffers canceled dozens of abortion appointments, fearing they or their patients could be prosecuted under the old statute.
The clinic's attorneys said abortion services are essential health care, and the state's most vulnerable residents are put at risk every day they don't have access to that care.
Morrisey, however, argued that the law is still enforceable. State attorneys claimed the law has not been active in decades only because prosecuting people for getting or performing abortions would have been illegal under Roe — but that's no longer the case.
The laws passed in years since do not conflict with the old law, the attorney general's office said, but rather were intended to "fill the void regarding unregulated post-Roe abortion," and if lawmakers wanted to repeal the 1800s-era law, they would have done so.
Before Monday's hearing, Morrisey's office wrote in court filings that the Women's Health Center's arguments "are likely to fail and overlook basic history: the West Virginia Legislature's attempt to protect innocent, unborn life to the greatest extent possible against the backdrop of Roe v. Wade."
"It is counter-historical to say that the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed," they said.
Salango said if lawmakers wanted to ensure that abortion would be criminalized in West Virginia if Roe fell, they should have taken more concrete action to do so.
"I will not put words in the legislature's mouth," she said. "However, if the legislature intended for the criminal statute to be in full force, it was free to pass a trigger law, similar to a number of other states. The legislature chose not to do so."
In 2021, the Women's Health Center performed 1,304 abortions, according to court documents. The majority of patients — 87% — were from West Virginia, with most others from Ohio and Kentucky.
Attorney Kathleen Hartnett from the Cooley law firm argued for the clinic, along with attorneys from the ACLU of West Virginia, Mountain State Justice and others.