CHARLESTON — Despite a circuit ruling Monday that re-opened the door for legal abortion access in West Virginia, Gov. Jim Justice said he is still waiting to call a special session to address the state’s nearly 160-year-old felony abortion law.

Speaking Tuesday morning during a virtual briefing with reporters from the State Capitol Building, Justice criticized the ruling by Kanawha County Circuit Court Judge Tera Salango, who granted a preliminary injunction Monday blocking enforcement of State Code 61-2-8, which makes it a felony for any person to cause an abortion.

“I think it is political theater,” Justice said of Salango’s decision. “I think the ultimate decision was made by the United States Supreme Court. Now there’s going to be hoops jumped through by our Attorney General appealing immediately to the (state) Supreme Court, with the Supreme Court weighing in and making decisions on what they think the law should be and everything.”

The law, dating back to the founding of West Virginia in 1863 and first put in Virginia’s criminal code in 1849 before being carried over into West Virginia’s criminal code. The only exception is for saving the life of the mother or child.

The law was ruled unconstitutional by a federal court in the 1970s after the U.S. Supreme Court acknowledged a woman’s right to an abortion in the 1973 Roe v. Wade decision. But last month, the U.S. Supreme Court held that the U.S. Constitution does not secure or deny women the right to an abortion, undoing Roe and a previous decision upholding access to abortion.

That U.S. Supreme Court decision prompted West Virginia’s only abortion clinic, Women’s Health Center of West Virginia, to halt all scheduled abortion procedures. They filed a lawsuit against State Code 61-2-8 last month, seeking to block enforcement of the old law. Attorneys for the Women’s Health Center argued that newer regulations on abortion access rendered the old law effectively voided. An appeal to either the Intermediate Court of Appeals or the state Supreme Court is expected.

In a recent advisory opinion, Attorney General Patrick Morrisey recommended the Governor and Legislature consider a review of the state’s abortion laws to provide better clarity and guidance. Justice supports calling a special session sooner rather than later to address abortion, but he said he is waiting on Republican legislative leadership to let him know when they’re ready.

“We need to have a special session to clean up some of the old, old ancient laws and everything that is outdated to say the least,” Justice said. “We need to do that, and 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 and everything to get themselves ready and do all the work that they have to do, because there are so many sensitive issues.”

Democratic leaders believe that Justice and the Legislature are dragging their feet, calling on both to quickly call a special session and provide the public some clarity on the issue.

“Jim Justice’s failure to call the legislature back into session to repeal section 61-2-8 is a supreme dereliction of his duty as Governor and an act of callous indifference that puts patients’ lives at risk, said Delegate Danielle Walker, D-Monongalia, vice chair of the West Virginia Democratic Party.

“We are simply asking the Governor, in the name of human decency, to do what he said he would do three weeks ago,” Walker continued. “Call the legislature back in session and repeal the law he described as ancient and archaic. Since legislative leadership lacks the courage to call themselves back, it’s up to the Governor to act. Leaders lead, Governor Justice.”

“This law is unreasonable and needs to be repealed; it is cruel and it does not reflect our values,” said Senate Minority Leader Stephen Baldwin, D-Greenbrier. “Families living with pregnancies and their doctors deserve legal clarity in seeking and providing necessary healthcare without threat of imprisonment, intimidation, or penalty. While our opinions on this difficult issue certainly differ, we must be able to agree that a woman’s life, health, and well-being should be protected by the law.”

Justice said the issue needs to be quickly dealt with, but it also shouldn’t be rushed in a way where lawmakers make more mistakes in trying to fix the laws.

“This will not go on for a long period of time. We’re talking about a very, very short window,” Justice said. “You kind of, honestly, expect when the law comes down as it did – something that is changing something over 50 years – it’s not going to be just a smooth initial step. I think you’re going to have some bumps and bruises and all of that in the very beginning. It may take a month or two months, but then all of this will get worked out.”

“Right now, we need to leave this to the courts and leave it to the Attorney General. I’ve got all the confidence in the world in him,” Justice said. “But we really need to stop the theatrics and we do need to clean up the law and we do need a special session to clean that up.”