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Morrisey Files Response In State Abortion Law Case

Photo by Steven Allen Adams A Kanawha County Circuit Court judge will hear arguments next Monday in a case to block West Virginia’s pre-Roe v. Wade abortion law. The Women’s Health Center in Charleston was the state’s only abortion clinic.

CHARLESTON — Citing a recent U.S. Supreme Court decision that returned decisions on abortion access back to the states, Attorney General Patrick Morrisey argued in a court filing that an attempt to block an old law on West Virginia’s books making providing an abortion a felony is invalid.

The Attorney General’s Office filed a response and memorandum in support Tuesday asking Kanawha County Circuit Court Judge Tera Salango to deny a motion for a preliminary injunction to block enforcement of State Code 61-2-8, a law that dates back to 1849 and carried over from Virginia’s criminal code to West Virginia in 1863.

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 West Virginia chapter of the ACLU and the national ACLU, social justice law firm Mountain State Justice, and the Cooley law firm filed a lawsuit last month in Kanawha County Circuit Court against Morrisey and Kanawha County Prosecuting Attorney Charles Miller to block the law on behalf of the Women’s Health Center of West Virginia, the state’s lone abortion clinic.

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of the code provision, a permanent injunction later, a judgment declaring that the code section is either implied repealed or void, or that the code section violates the due process protections of the state Constitution.

In Tuesday’s filing, Deputy Attorney General Curtis Capehart argued that State Code 61-2-8 remains on the state’s books even after enforcement of the provision was blocked by a federal court in the 1970s after the Roe v. Wade decision.

The fact it remains in State Code demonstrates the Legislature’s intent for the law to be back in force once Roe was overturned.

“It is counter-historical to say the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed,” Capehart wrote.

“Here, the Act was impeded not because the Legislature intended to displace it with a newer law, nor because the (Governor) stopped enforcing it,” Capehart continued. “Instead, the U.S. Supreme Court’s holding in Roe caused lower courts to hold that the Act was unconstitutional — thus enforceable — against the wishes of the Legislature and the Executive, which had continued to prosecute the law as written.”

In a 6-3 ruling last month, the U.S. Supreme Court held that the U.S. Constitution does not secure or deny women the right to an abortion. The majority decision overturned the landmark 1972 Supreme Court decision in Roe and a follow-up decision 19 years later in Planned Parenthood of Southeastern Pa. v. Casey that both upheld the right for women to seek an abortion.

Capehart argued that just because the Legislature passed bills since the Roe decision that regulated abortion access did not mean that State Code 61-2-8 became null and void. Capehart said these laws were meant to fill a gap until the day that the Supreme Court would possibly throw out Roe. Capehart also argued that the Legislature had plenty of opportunities to remove the code section from state law.

“… Over the 50 year-period when Roe was law, the Legislature was controlled by the Democrat Party and later by the Republican Party – and in each case, the Governor’s Office was occupied by officials of the same parties during that span,” Capehart wrote. “Yet there was never legislative action removing the Act from the West Virginia Code.

“There was no impediment for either party during their respective times of control – each having enjoyed periods when they held the power to so unimpeded by the other party – to repeal the statute had there ever been an interest to do so,” Capehart continued. “The logical explanation for the Act’s continued presence in the Code is simple: there was no intent to repeal it.”

While the Women’s Health Center is still open for other reproductive healthcare services, it halted all abortion services after the Supreme Court decision over concerns about State Code 61-2-8.

Arguments in the case will be heard Monday in Kanawha County Circuit Court.

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