Judge temporarily blocks law preventing abortions in W.Va.

Judge temporarily blocks W.Va. abortion law
Published: Jul. 18, 2022 at 3:29 PM EDT
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CHARLESTON, W.Va. (WSAZ) - Abortion services can resume at Women’s Health Center of West Virginia, and the state’s only abortion clinic announced Monday it plans to do just that.

But the argument on what to do with an abortion law from the 1800s is far from over.

Kanawha Circuit Judge Tera Salango granted a temporary injunction Monday afternoon. It blocks the enforcement of an 1849 law that prohibits all abortions. The statute in question predates West Virginia statehood, and it hasn’t been enforced for approximately 50 years.

The sides disagree on whether the old law can co-exist with modern statutes passed since Roe v. Wade.

Salango had concerns. She pointed to a felony murder statute and contrasted it with the 1849 abortion ban. She said the murder statute provides a potential life sentence for the death of an unborn child -- the other just three to 10 years in prison.

“In today’s world, it is simply too vague to be applied,” she said in ruling from the bench. “The people of West Virginia would have no way to know which set of statutes a particular law enforcement agency or county prosecutor would choose to apply, and this is a result that cannot stand.”

This case pits the Women’s Health Center of West Virginia against the State of West Virginia. The ACLU, on behalf of the Health Center, had sought an injunction to stop the enforcement of the 100-year-old law that criminalized abortion in West Virginia.

The ACLU argues the state’s criminal abortion statute cannot co-exist with modern laws passed since Roe V. Wade. That includes the state’s 20-week ban on abortion and, more recently, a ban on abortions sought because of a disability, such as Down Syndrome.

The ACLU contends that every day the law remained enforceable those who are pregnant were forced to have their own abortions, travel out of state or remain pregnant against their will.

West Virginia Attorney General Patrick Morrisey quickly announced he would appeal Salango’s ruling.

“This is a dark day for West Virginia,” he said in a prepared release. “As a strong pro-life advocate, I 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.”

The state Attorney General’s Office contends those representing the state’s only abortion clinic lack standing to bring a case on behalf of all pregnant women and that the court must consider a special public interest - the life-or-death stakes of unborn children, who it calls the most vulnerable in society.

The Attorney General argues the state’s prosecutors never decided to stop prosecuting the 1800s law that remained on the books even after Roe v. Wade was decided in 1973. Morrisey says it was used up until the Roe decision and the law went unenforced only because courts said that, under Roe, the criminal statute was unenforceable. According to Morrisey, there was never legislative action to remove the Act from the West Virginia Code.

Onlookers who attended Monday’s hearing reacted afterward.

“We’re thrilled with today’s ruling,” said Margaret Chapman Pomponio, executive director for WV Free. “We feel that justice was served today, but there’s still a lot of confusion to clear up. People have been having to travel out of state to get the basic care that they need. Prosecutors are confused about what to do. Health care providers are also confused.”

“I’m extremely disappointed,” said J.C. Carpenter, a pro-life advocate. “Abortion should be illegal. Abortion is a traumatic thing that damages women and kills children.”

Salango declined a request from the Attorney General’s Office to immediately stay the ruling. She said she would consider the request upon receiving written briefs from both sides.

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