Morrisey files appeal to overturn injunction stopping enforcement of 1870 abortion ban

Those conflicts, she ruled, are irreconcilable and robs residents of the right of due process by knowing exactly what is and is not legal regarding abortion access.

In the appeal filed Thursday, lawyers with the Attorney General’s Office decried this ruling and urged the court to rescind the preliminary injunction. Laws passed in West Virginia to regulate abortion since 1973, when Roe v. Wade was handed down, are not enough to prove the Legislature intended to repeal the 1870 law, the appeal reads.

“To address this legal barrier (of Roe v. Wade), the (West Virginia) Legislature passed a series of civil laws protecting women and unborn human life to the maximum extent possible under the new constitutional rule,” the appeal reads.

Roe v. Wade — the case that federally protected a patient’s right to an abortion — was overturned by the U.S. Supreme Court last month.

With the preliminary injunction in place, abortions are still allowed in West Virginia up to 22 weeks of gestation. Other pieces of code prohibit a patient from receiving an abortion over potential disabilities in the fetus, and require any patient to receive counseling before undergoing the procedure.

During the most recent legislative session, lawmakers failed to pass a 14-week ban on abortion. And unlike numerous other states, West Virginia legislators did not enact a “trigger law,” which would have immediately stopped abortion access if Roe stopped being enforceable.

Instead, the 1870 law remained on the state’s books, but it was not constitutionally enforceable while Roe was in effect. That law levies felony charges for anyone who receives or induces an abortion, and those found guilty of violating it could face three to 10 years in prison.

For more than 100 years, that law was enforced. Newspaper archives show multiple examples of patients, their loved ones and physicians being jailed under the statute.

In modern terms, however, the law is “too vague,” Salango ruled July 18, and its penalties conflict with others on the books for the same or similar code violations.

“Perhaps when it was drafted, the legislation was sufficient to provide notice. However, in today’s world, it’s simply too vague to be applied,” Salango said. “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.”

In Thursday’s appeal, attorneys wrote that the 1870 law should act to “complement” other, more recent abortion regulations in the state. In her ruling, Salango said the conflicts vary too much for the law to do so.

The state Supreme Court issued a scheduling order Thursday for Morrisey’s appeal, with all filings in the case due by Jan. 25, 2023, at the latest. Until all briefs are filed, the Supreme Court cannot issue a decision.

In response to the July 18 preliminary injunction, the Women’s Health Center resumed offering abortion services after stopping them June 24, when Roe was overturned.

Until the appeal is litigated out or the Legislature acts to revise its conflicting abortion statutes — which Morrisey and Gov. Jim Justice have said need to be “cleaned up” — the center will continue offering the service.

The Attorney General’s Office on Tuesday, July 19, filed a motion requesting a stay that would allow the state to enforce the 1870 ban until the appeal is litigated, but it’s unclear if any action has been taken on that motion.