W.Va. Abortion Law’s First Legal Test Comes Monday

When the U.S. Supreme Court overturned Roe v. Wade, it sent abortion law decisions back to the states.

Attorney General Patrick Morrisey’s initial opinion was that a 19th century felony law banning all abortion was valid, but needed legislative clarification due to subsequent restrictive abortion rulings.

A group of reproductive rights advocates are asking the court for an injunction to prevent enforcement of the old law. They say laws that both restrict and ban abortion conflict and need legislative clarification.

“For the past half century the criminal abortion ban has lain dormant, and has been replaced by a modern, comprehensive statutory regime that recognizes and regulates the provision of legal abortion in West Virginia,” the lawsuit contends.

A response and memorandum filed by the attorney general’s office in the injunction case denies there’s a conflict. The documents state that the original law was never repealed and legislative interests have always been to limit abortions to the fullest extent possible.

“The statutory scheme shows that the Legislature never intended to repeal the Act through those regulations, and even if a conflict existed (and one does not), the ‘general rule’ to strike the Act is in apropos because of the unique Roe-specific intent behind the civil regulations,” the response states.

The response also states plaintiffs are not specific individuals seeking abortions and therefore have no legal standing here.

“Plaintiffs do not have the special standing to bring a claim on behalf of all pregnant women in West Virginia seeking an abortion, so they cannot claim any irreparable injury to pregnant women as relates to their request for a preliminary injunction,” the response states.

The hearing begins next Monday in Kanawha County Circuit Court.