Morrisey Issues Opinion On W.Va. 1849 Abortion Law

West Virginia has had a law on the books banning abortion since before it became a state. The original code was enacted in 1849.

This week, state Attorney General Patrick Morrisey issued an opinion on the status of that law.

Morrisey’s opinion states:

Enacted in 1849 and never repealed since, West Virginia Code § 61-2-8 provides that “[a]ny person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage,” commits a felony punishable by three to ten years in prison.

The statute covers persons who perform abortions and, at least arguably, women who seek them.

It contains an exception: It does not cover acts “done in good faith, with the intention of saving the life of such woman or child.”39 And “intent is an integral part of the crime of abortion.”40 As a criminal statute, the law must be enforced by the prosecutor for the county in which the abortion occurred.

Unlike many pre-Roe criminal abortion bans, Section 61-2-8 is not presently subject to an injunction. In 1975, the U.S. Court of Appeals for the Fourth Circuit held that Section 61-2-8 was “unconstitutional beyond question” under Roe. 42 The Fourth Circuit thus ordered the district court to “immediately issue [a preliminary] injunction to require [a Charleston-area] hospital to ignore the unconstitutional state statute.”

The district court did so.

But several years later, the district court entered a judgment dismissing Doe without entering a permanent injunction.45 Because “[a] preliminary injunction imposed according to the procedures … dissolves ipso facto when a final judgment is entered in the cause,”46 no continuing injunction exists in Doe (or any other case47) as to Section 61-2-8. The Fourth Circuit’s decision in Doe also does not otherwise prevent the statute’s enforcement today. When a court “invalidates a law as unconstitutional, the Court of course does not formally repeal the law.”48 Rather, “the offending provision formally remains on the statute books (at least unless [the legislature] also formally repeals it).”

Now that the basis for the Fourth Circuit’s declaration is gone, the West Virginia statute may “spring back to life” and “regain [its] vitality.”

Challengers have already filed a suit to enjoin this law in Kanawha County Circuit Court.

They argue that the statute has been impliedly repealed, that the doctrine of desuetude applies given the lack of recent enforcement, and that the provisions are unconstitutionally vague. Assuredly, we have strong arguments against this challenge. But the statute would still benefit from the Legislature’s further attention.

You can read the full opinion here.

Gov. Jim Justice has previously said he was prepared to call a special session of the legislature to address the issue.