West Virginia's only abortion clinic was going before a county judge on Monday to ask that an 1800s-era law be thrown out so the facility can immediately resume abortions.
The Women’s Health Center of West Virginia suspended abortion services on June 24, the day the U.S. Supreme Court overturned Roe v. Wade. The state has an abortion ban on the books dating back 150 years that makes performing or obtaining an abortion a felony, punishable by up to a decade in prison. There is an exception for cases in which a pregnant person's life is at risk.
The ACLU of West Virginia has argued on the clinic's behalf that the old law is void because it hasn't been enforced in more than 50 years and has been superseded by a slew of modern laws regulating abortion that acknowledge a woman's right to the procedure. One example is West Virginia's 2015 law, which allows abortions until 20 weeks.
In motions before Kanawha County Circuit Court Judge Tera L. Salango in Charleston, the Women's Health Center's attorneys said abortion services are essential health care, and the state's most vulnerable residents are put at risk every day they don't have access to that care.
Staffers have canceled dozens of abortion appointments, fearing they or their patients could be prosecuted under the old statute. "When it was in effect, the statute was used to criminalize both people who seek and provide abortion care,” the ACLU said.
West Virginia Attorney General Patrick Morrisey, however, says the law is still enforceable. State attorneys countered that the law hasn't been active in decades only because prosecuting people for getting or performing abortions would have been illegal under Roe — but that's no longer the case.
The laws passed in years since do not conflict with the old law, the attorney general's office says, but rather were intended to “fill the void regarding unregulated post-Roe abortion," and if lawmakers wanted to repeal the 1800s-era law, they would have done so.
Morrisey's office said the Women's Health Center's arguments “are likely to fail and overlook basic history: the West Virginia Legislature’s attempt to protect innocent, unborn life to the greatest extent possible against the backdrop of Roe v. Wade.”
“It is counter-historical to say that the Legislature intended less protection for unborn life if Roe was overruled than if Roe never existed," they said.
In 2021, the Women's Health Center performed 1,304 abortions, according to court documents. The majority of patients — 87% — were from West Virginia, with most others from Ohio and Kentucky.
Attorney Kathleen Hartnett from the Cooley law firm is arguing their case, along with attorneys from the ACLU of West Virginia, Mountain State Justice and others.
