An 1870 West Virginia law criminalizing most abortions must be reinstated, Attorney General Patrick Morrisey (R) told the West Virginia Supreme Court of Appeals in a brief urging it to overturn the decision to a state trial judge blocking law enforcement.
The action is the latest salvo in one of countless battles fought in state courts across the country, where abortion rights advocates have turned to state laws and constitutions to restore recently annihilated rights. by the United States Supreme Court.
West Virginia’s penal provision was never repealed and its disuse stems from Roe vs. Wade, not state policy, Morrisey said. The state will suffer “extreme irreparable harm” if Kanawha County Circuit Judge Tera L. Salango’s July 18 preliminary injunction is not lifted, he said.
The injunction allowed the state’s only abortion clinic, the Women’s Health Center of West Virginia, to resume services after it closed following a Dobbs v. Jackson Women’s Health Organizationwho canceled Deer.
The 152-year-old law has never been explicitly repealed, and implied repeal is generally frowned upon, Morrisey said in a brief urging the court to overturn Salango’s decision. Additionally, a series of civil statutes and regulations enacted after the United States Supreme Court recognized a federal constitutional right to abortion in 1973 “can be harmonized” with criminal law, as none of them imposes actions it prohibits, he said.
Morrisey also urged the court to abandon a doctrine that failure to use a law results in its amendment or repeal. The doctrine is not applicable because the state has ceased to enforce the criminal law on abortion in light of deernot because of a political decision, Morrisey said in the July 22 petition.
The American Civil Liberties Union, ACLU of West Virginia, Mountain State Justice, and the Cooley Law Firm represent the clinic. The West Virginia Attorney General’s Office and Alliance Defending Freedom represent the state.
Kentucky Ban Update
In Kentucky, Jefferson Circuit Court Chief Justice Mitch Perry blocked the state from enforcing a trigger ban, so named because it was triggered by the Supreme Court ruling. Dobbs decision – and a ban on abortions from around six weeks of pregnancy. He had previously issued a temporary restraining order.
Passed in 2019, the trigger ban prohibits all abortions except when necessary to save the life of a pregnant person or prevent serious physical impairment. The six-week ban prohibits abortions after embryonic heart activity is detected. Neither law contains an exception for rape or incest.
The triggering ban unconstitutionally delegates legislative power “not just to a different branch of government, but to an entirely different adjudicative body,” Perry said in the July 18 notice. By conditioning the application of the law on the decision of the Supreme Court of the United States in Dobbsit goes against the doctrine of the separation of powers, he said.
The law is also unconstitutionally vague because it does not give enough notice of when it will take effect, Perry said. The state said it would begin enforcing the ban as of the date of the Supreme Court’s ruling, but that ruling didn’t become final until July 19, he said.
The six-week ban likely violates the Kentucky Constitution’s right to liberty and self-determination, Perry also said. The state charter has been deemed to offer greater privacy protections than the federal constitution, and the right to privacy has been recognized as an integral part of its guarantee of liberty since its adoption in 1891, a- he declared.
Perry also said the laws fall exclusively on women and thus violate the Equal Protection Clause of the Kentucky Constitution. And the six-week ban violates religious clauses in the state constitution because it espouses the “distinctly Christian and Catholic belief” that life begins at conception, he said. “Other faiths have a wide variety of views on the beginning of life,” he said.
Laws challenged by EMW Women’s Surgical Center PSC and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky Inc. may not be enforced pending resolution on the merits, Perry said.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charity founded by Michael Bloomberg, owner of Bloomberg Law.
Craig Henry PLC, ACLU of Kentucky, O’Melveny & Myers LLP, American Civil Liberties Union Foundation and Planned Parenthood Federation of America represent the providers. The state attorney general’s office represents Kentucky.
The cases are Morrisey v. Women’s Health Ctr. of W. Va., W. Va., No. 22-576, petition filed 07/22/22; EMW Women’s Surgery Center. vs. Cameron, Ky. Cir. Ct., No. 22-CI-3225, 7/22/22.