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Justice: Special session on abortion coming soon

Gov. Jim Justice announces on Dec. 23 what will be done with West Virginia’s remaining $122.8 million in CARES Act money during his Dec. 23 media briefing. (Photo Courtesy of W.Va. Governor’s Office)

CHARLESTON – Now that West Virginia Attorney General Patrick Morrisey has weighed in with an advisory opinion reviewing the state’s abortion laws, Gov. Jim Justice said Thursday that a special session of the Legislature will be called soon.

During his virtual briefing with reporters at the Capitol, Justice said he received the opinion from the Attorney General’s Office and spoke with Morrisey prior to the briefing.

“I’ve looked left, I’ve looked right, and I’ve looked behind,” Justice said. “I’ve taken all the information that I can take from legislators as well as our Attorney General. I will call a special session and I will call it very, very soon. I’m asking our legislators to get their stuff in order as to what ways they want to go, and I’m asking the leadership to guide and direct them in every way.”

Based on the advisory opinion, Justice said “we need to go” and quickly address issues with West Virginia’s hodge-podge of abortion laws, including a law from the 1800s that makes providing an abortion a felony.

“I believe now that I agree wholeheartedly that we need to move faster, and we need to move for further and more detailed clarification,” Justice said. “The Legislature needs to amend this law to get absolute clarification in every way. As I promised, I would not hesitate to call a special session once I got rock-solid information and evidence as to what we should do.”

The Attorney General’s Office released the advisory opinion Wednesday night. The advisory opinion looked at all of West Virginia’s abortion laws in the State Code and how the Supreme Court’s decision last Friday in Dobbs v. Jackson Women’s Health Organization overturned two previous Supreme Court rulings in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey that both upheld a right for women to seek an abortion.

“… The West Virginia Legislature is strongly advised to amend the laws in our State to provide for clear prohibitions on abortion that are consistent with Dobbs,” Morrisey wrote. “We will continue to provide counsel in response to this landmark decision and changing legal landscape, as well as to update the Legislature and Governor about ongoing developments in the courts.”

Morrisey said lawmakers need to consider several factors when crafting a abortion regulations: determining what acts should be subject to criminal prosecution; whether a woman seeking an abortion should be prosecuted; determining exceptions for when abortion is necessary; regulations regarding abortion medications; stronger and more consistent enforcement of abortion laws.

Morrisey said any updates to the abortion laws should at least contain an exception for preserving the life of the mother. Morrisey believes any full ban on abortion that doesn’t contain that exception would be thrown out by a court.

“It is difficult to imagine a reviewing court finding even a rational basis for an absolute ban on abortion: It is not reasonable to trade the woman’s life for potential life or the life of an unborn child,” Morrisey said. “So, while there might be other potential constitutional limits on states’ post-Dobbs discretion, at a minimum any laws in this space must protect the pregnant woman’s life.”

Morrisey also said State Code 61-2-8, an 1849 Virginia law that West Virginia copied into its criminal code in 1863, was still in effect even after being blocked by a federal court after the Roe decision in the 1970s. The law 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 Fourth Circuit’s decision also does not otherwise prevent the statute’s enforcement today,” Morrisey wrote. “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.'”

A coalition of groups, led by the ACLU-WV, filed a lawsuit Wednesday in Kanawha County Circuit Court against Morrisey and the Kanawha County Prosecuting Attorney’s office to block enforcement of the old state code section. Morrisey said he will defend the law, but he also encouraged lawmakers to review the code section.

“Challengers have already filed a suit to enjoin this law in Kanawha County Circuit Court. They argue that the statute has been impliedly repealed and that the provisions are unconstitutionally vague,” Morrisey said. “Assuredly, we have strong arguments against this challenge. But the statute would still benefit from the Legislature’s further attention.”

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