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CHARLESTON \u2014 Abortions are once again allowed in West Virginia, at least for now, after a circuit judge issued Monday a preliminary injunction against the state\u2019s 150-year-old ban on the procedure.<\/p>\n
In her decision, Kanawha County Circuit Court Judge Tera L. Salango said that in the absence of action by the court, the state\u2019s sole abortion clinic and its patients, \u201cespecially those who are impregnated as a result of a rape or incest, are suffering irreparable harm.\u201d<\/span><\/p>\n Attorney General Patrick Morrissey acknowledged abortion is legal in West Virginia but vowed to appeal the decision to the state Supreme Court of Appeals \u201cas soon as legally possible.\u201d<\/span><\/p>\n \u201cThis is a dark day for West Virginia,\u201d<\/span> he said. \u201cI 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.\u201d<\/span><\/p>\n West Virginia\u2019s law that dates back to the 1800s makes performing or obtaining an abortion a felony, punishable by up to a decade in prison. It provides an exception for cases in which the pregnant person\u2019s life is at risk.<\/p>\n Lawyers for the Women\u2019s Health Center \u2014 the state\u2019s only abortion clinic \u2014 argued that the old law is void because it has not been enforced in more than 50 years and has been superseded by a slew of modern laws regulating abortion that acknowledge a woman\u2019s right to the procedure. One example is West Virginia\u2019s 2015 law, which allows abortions until 20 weeks.<\/p>\n Judge Salango agreed, saying the recent laws enacted by the state Legislature \u201chopelessly conflict with the criminal abortion ban\u201d<\/span> and that it would be \u201cinequitable\u201d<\/span> to allow conflicting laws to remain on the books.<\/p>\n \u201cThe code is replete with examples of undeniable conflicts in the law that appear fundamental and irreconcilable, making the law incompatible by any reading,\u201d<\/span> she said of the criminal abortion ban. \u201cPerhaps when it was drafted, that legislation was sufficient. However, in today\u2019s world, it is simply too vague to be applied.\u201d<\/span><\/p>\n The Women\u2019s Health Center of West Virginia 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.<\/p>\n \u201cThe impacts of abortion being pushed out of reach for the last month have been devastating,\u201d<\/span> Women\u2019s Health Center Executive Director Katie Quinonez said in a news release from the ACLU of West Virginia. \u201cToday\u2019s decision is a sigh of relief, and means we can once again serve the people who reach out to us for abortion services. Make no mistake: Essential health care shouldn\u2019t depend on the whims of a court or politicians, it should be based on compassion and what\u2019s best for one\u2019s life and future. We won\u2019t stop fighting for the ability to serve our patients with the care they need \u2014 not now, and not ever.\u201d<\/span><\/p>\n The clinic\u2019s attorneys said the state\u2019s most vulnerable residents are put at risk every day they don\u2019t have access to that care.<\/p>\n 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 \u2014 but that\u2019s no longer the case.<\/p>\n The laws passed in years since do not conflict with the old law, the attorney general\u2019s office said, but rather were intended to \u201cfill the void regarding unregulated post-Roe abortion,\u201d<\/span> and if lawmakers wanted to repeal the 1800s-era law, they would have done so.<\/p>\n Before Monday\u2019s hearing, Morrisey\u2019s office wrote in court filings that the Women\u2019s Health Center\u2019s arguments \u201care likely to fail and overlook basic history: the West Virginia Legislature\u2019s attempt to protect innocent, unborn life to the greatest extent possible against the backdrop of Roe v. Wade.\u201d<\/span><\/p>\n \u201cIt is counter-historical to say that the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed,\u201d<\/span> they said.<\/p>\n 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.<\/p>\n \u201cI will not put words in the Legislature\u2019s mouth,\u201d<\/span> she said. \u201cHowever, 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.\u201d<\/span><\/p>\n In 2021, the Women\u2019s Health Center performed 1,304 abortions, according to court documents. The majority of patients \u2014 87% \u2014 were from West Virginia, with most others from Ohio and Kentucky.<\/p>\n 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.<\/p>\n
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