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ACLU files lawsuit against old W.Va. abortion law

CHARLESTON — While Gov. Jim Justice, Attorney General Patrick Morrisey, West Virginia lawmakers and consider what to do about an old law on the books making providing abortion services a felony, a coalition of groups have filed suit to block enforcement of the law.

The national parent organization and the West Virginia chapter of the ACLU, joined by social justice law firm Mountain State Justice and the Cooley law firm, filed a lawsuit Wednesday in Kanawha County Circuit Court against Morrisey and Kanawha County Prosecuting Attorney Charles Miller to block enforcement of State Code 61-2-8 on behalf of the Women’s Health Center of West Virginia and its staff.

That section of the criminal code makes it a felony for any person to cause an abortion. If convicted, a doctor or other person could be sentenced to between three and 10 years in prison. The only exception is for saving the life of the mother or child.

The coalition is seeking an immediate temporary restraining order or preliminary injunction to block enforcement of the code provision, a permanent injunction later, a judgment declaring that the code section is either implied repealed or void, or that the code section violates the due process protections of the state Constitution.

The Women’s Health Center was West Virginia’s lone abortion clinic until last Friday, when the U.S. Supreme Court ruled in favor of a Mississippi law that limited abortion to 15 weeks of gestation and overturned Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey – two decisions that upheld the right for women to seek an abortion. While the clinic continues to offer other reproductive health services, it has ceased all abortions.

“With the overturning of Roe v. Wade, our worst nightmares have become reality,” said Katie Quinonez, executive director of the Women’s Health Center. “I worry deeply about our most vulnerable patients who are left with few and difficult options – those who cannot make the expensive trip to travel out of state, will wither be forced to continue their pregnancies against their will, or risk criminalization by self-managing their abortion.”

The law has been on West Virginia’s books since the founding of the state in 1863, carried over from similar language in Virginia’s criminal code dating back to 1849. That section of state code remained active until 1975, when a U.S. Court of Appeals for the Fourth Circuit ruled in Doe v. Charleston Area Medical Center determined that law was unconstitutional.

Justice said last week and Monday that he is consulting with his legal advisors, the Attorney General’s Office, and the West Virginia Legislature regarding the possibility of a special session to address any changes that need to be made to state code in light of the Supreme Court ruling.

In an advisory opinion released Wednesday night, Morrisey said the original injunction blocking enforcement of the old code section is now in effect, though he acknowledged that the Legislature may want to review and update that code section.

“The Fourth Circuit’s decision in Doe also does not otherwise prevent the statute’s enforcement today,” Morrisey wrote, quoting from previous court rulings and published works. “Rather, ‘the offending provision formally remains on the statute books (at least unless [the legislature] also formally repeals it)’. Now that the basis for the Fourth Circuit’s declaration is gone, the West Virginia statute may ‘spring back to life’ and ‘regain [its] vitality.'”

But the legal team leading the fight against the law said women in the state can’t wait.

“We will not stand by while this state is dragged back to the 1800s,” said ACLU-WV Legal Director Loree Stark. “Every day that uncertainty remains about the enforceability of this statute is another day that West Virginians are being denied critical, lifesaving healthcare. That’s why we are asking the Court to make it clear this law cannot be enforced.”

“The law in question has not been enforced for 50 years,” said Sarah K. Brown, executive director of Mountain State Justice. “There should never be uncertainty between West Virginians and their medical providers.”

“We look forward to demonstrating that this archaic law is null and void,” said Kathleen Hartnett with the Cooley law firm.

A spokesperson for the Attorney General’s Office said they would review the lawsuit but had no further comment. But in his advisory opinion, Morrisey addressed the lawsuit.

“Challengers have already filed a suit to enjoin this law in Kanawha County Circuit Court,” Morrisey wrote. “They argue that the statute has been impliedly repealed, that the doctrine of (state of disuse) applies given the lack of recent enforcement, and that the provisions are unconstitutionally vague. Assuredly, we have strong arguments against this challenge. But the statute would still benefit from the Legislature’s further attention.”

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