West Virginia criminal abortion law goes to court
The Kanawha County District Attorney’s Office, which could be tasked with enforcing criminal penalties under West Virginia’s new criminal abortion law of the 1800s, said in a court filing that it was satisfied that the governor and legislators would clarify state policy.
There are, however, no current or specific plans by the governor or lawmakers to do so.
The prosecutor’s office was responding to a legal challenge to the state’s criminal abortion law. An injunction hearing is scheduled for 1:30 p.m. Monday in Kanawha Circuit Court.
Lawyers for West Virginia’s only abortion clinic argue that the old law should be considered lapsed because of new laws that presume abortion is legal — and that the old law is so vague that it is inapplicable.
The attorney’s office expressed confidence in state officials to clarify West Virginia’s policies following the US Supreme Court’s Dobbs decision that left abortion law to the states .
“Again, while acknowledging that the plaintiffs have asserted prejudice due to ‘confusion’ regarding the application of the abortion ban law, it is likely that in the reasonably foreseeable future, the legislature and the governor will participate in a special session that will address and enact legislation regarding the status of abortion in West Virginia after Dobbs,” prosecutors wrote in their filing.
The filing from the prosecutor’s office refers to a public statement by Kanawha prosecutor Charles Miller that he believes the current law is in flux. Currently, the prosecutor said, “there are no referrals under the Prohibition Act.”
The prosecutor’s office wrote that “despite any current confusion about the applicability of said law, such confusion will likely be cleared up when a special session of the Legislative Assembly is convened to deal with this matter.” Again, anecdotally, the Governor of Justice said such a session would be convened soon.
And the prosecutor’s office said it “does not predict whether or not the West Virginia legislature will ban abortion; instead, whatever law passes will clarify the status of abortion availability in West Virginia and whether or not abortions are criminalized.
Gov. Jim Justice has called for a special session later this month — but on tax cuts, rather than the abortion law. During a briefing last week, Justice said he would rather be safe than fast on the abortion law.
“The best thing I can do is never play games with anyone, never push people into a special session just to put on a show for nothing, do the right things all the time,” he said. declared Justice.
“In this situation, the right thing is to give our legislature time. It’s a sensitive, sensitive subject. It’s something that’s been going on for 50 years, and it’s also absolutely, so difficult because there are so many facets to so many different aspects. And if we’re not careful, it will become a spectacle. And we don’t want that, do we?
State Sen. Robert Karnes predicted a ruling upholding the injunction motion in Kanawha Circuit Court this week. And Karnes suggested the whole issue would likely be appealed to the state Supreme Court.
Karnes, R-Randolph, suggested that it might be best for state officials to let abortion law issues be resolved through the court system before revising the state code.
“I think what we’re going to have to do on abortion law is see what the courts come up with,” Karnes said last week on MetroNews’ “Talkline.”
“I think we all know this is going to end up in the state Supreme Court, and we’ll see how they rule – and I’m willing to wait until we hear from them. If they think the law is enforceable as is, I think we can do the work around the edges in the next session. If they were to ban the application of this law, I think we have to hold a special session.
Delegate Kayla Young, D-Kanawha, said she thinks voters deserve to know where lawmakers stand.
But she couldn’t predict when or if lawmakers might clarify state policy. “I looked in my crystal ball, and it was a little cloudy,” Young said last week on “580 Live” on WCHS Radio.
“I don’t know. I think it’s more of a political question. I think the supermajority is worried that it will get people on my side voting, and I think they would be right to do so.
Books law in West Virginia dates back to the early days of the state. It describes three to 10 years in prison for abortion. There is an exception for the life of the “bona fide” mother.
The law says:
Whoever administers or causes a woman to take any drug or other thing, or uses any means, with intent to destroy her unborn child, or to cause an abortion or miscarriage, and will thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony and, on conviction, shall be confined in the penitentiary not less than three years nor more than ten years; and if that woman dies because of such an abortion performed on her, that person will be guilty of murder. No one, because of an act mentioned in this article, will be punishable if this act is done in good faith, with the intention of saving the life of this woman or this child.
The attorney general and plaintiffs in the legal challenge to the law concluded that it could be interpreted to prosecute not only medical providers, but also pregnant women and people who help them have abortions.
Loree Stark, legal director of the American Civil Liberties Union of West Virginia, told a crowd of protesters on Capitol Hill this month that the state’s law is “not just archaic, it’s cruel.”
“The law itself is so broad that it’s almost impossible to determine what conduct it criminalizes,” Stark said.
“And we’ve seen this legislature over the last few years pass restriction after restriction on abortion. So the question now is, how can there be this law from the 1800s on the books that completely criminalizes abortion – how can this exist with these other restrictions that the legislature has passed in the past over recent years? »