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Judge Grants Injunction, W.Va. Abortions Effectively Allowed Again

 Judge Tara Salango court abortion.jpg
Randy Yohe
/
West Virginia Public Broadcasting
Kathleen Hartnett, attorney for Women's Health Center of West Virginia, speaks before Judge Tara Salango. Salango issued an injunction against West Virginia's 19th century abortion law on July 18, 2022.

A Kanawha County judge granted an injunction Monday denying enforcement of a 19th century law banning abortions. Following the ruling, the Woman’s Health Center of West Virginia announced publicly it will return to provide reproductive health care that includes abortions.

After a hearing of an hour and 20 minutes, Kanawha County Circuit Court Judge Tara Salango ruled that the varied laws on the West Virginia state books regarding abortion were conflicting and confusing. In light of that, she granted a temporary injunction against the original law, effectively allowing abortions again in the state.

“The plaintiffs and their patients, especially those who are impregnated as a result of a rape or incest, are already suffering irreparable harm in the absence of an injunction,” Salango said. “Defendants will suffer no injury from this injunction that is not suffered from the prior half century of non-enforcement of this crime. It is inequitable to allow the state of West Virginia to maintain conflicting laws on its books.”

Attorneys representing the Women’s Health Center of West Virginia, the only abortion clinic in the state, argued that a 19th Century law making all abortions a felony was not valid due to newer more permissive abortion rulings.

The defendants' attorneys were represented by Attorney General Patrick Morrisey and Kanawha County Prosecutor Chuck Miller.

Morrisey had argued that the 19th Century law was never repealed by the West Virginia Legislature, so it remains valid.

The criminal law, dating back to West Virginia’s earliest days, calls for 3 to 10 years in prison for being found guilty of administering an abortion, and if the mother should die, it would be murder.

Salango asked the defendants if someone today shot and killed a pregnant woman and her fetus, would that not be murder, punishable by life in prison? She asked how that would compare to the old criminal law of abortion murder punishable by 3 to 10 years imprisonment. The attorney answered that every case is judged on its individual merits.

Salango said state code is replete with examples of undeniable conflicts in abortion laws.

“In this instance, we have conflicting statutes, one of which was drafted in 1849, and several of which have been drafted more recently, including one that went into effect last month,” Salango said

She said both the legislative and executive branches have acknowledged the conflicts present in the law and the need for legislative revision.

“It simply does not matter whether you are pro-choice or pro-life,'' Salango said. “Every citizen in this state has a right to clearly know the laws under which they are expected to live.”

Following the ruling, Attorney General Patrick Morrisey issued a statement saying the statutes do not conflict and he will appeal the decision.

“This is a dark day for West Virginia,” Morrisey said. “We will appeal this decision to the Supreme Court of Appeals as soon as legally possible. As a strong pro-life advocate, I am committed to protecting unborn babies to the fullest extent possible under the law, and I will not rest until this injunction is lifted. The current law on the books calls for the protection of life.”

Last month, after the U.S. Supreme Court overturned Roe v. Wade, the Women’s Health Center of West Virginia, the state’s only abortion provider, immediately stopped providing the care. Gov. Jim Justice indicated he would call the state legislature back into session to address any issues with the 1849 law, but so far has not done so.

Government Reporter, ryohe@wvpublic.org, 304-634-8123

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