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Kentucky Abortion Ban, West Virginia Criminal Law Suits Advance

July 25, 2022, 2:51 PM

An 1870 West Virginia law criminalizing most abortions must be reinstated, Attorney General Patrick Morrisey (R) told the West Virginia Supreme Court of Appeals in a brief urging it to overturn a state trial judge’s decision blocking the law’s enforcement.

The action is the latest salvo in just one of myriad battles being fought in state courts throughout the country, where abortion rights advocates have turned to state laws and constitutions to restore rights recently gutted by the US Supreme Court.

West Virginia’s criminal provision has never been repealed, and its disuse stems from Roe v. Wade, not state policy, Morrisey said. The state will suffer “extreme irreparable harm” if Kanawha County Circuit Judge Tera L. Salango’s July 18 preliminarily injunction isn’t lifted, he said.

The injunction allowed the state’s only abortion clinic, Women’s Health Center of West Virginia, to resume services after it shut down in the wake of Dobbs v. Jackson Women’s Health Organization, which overruled Roe.

The 152-year old law has never been explicitly repealed, and implied repeal is generally disfavored, Morrisey said in a brief urging the court to reverse Salango’s decision. Moreover, a series of civil laws and regulations adopted after the US Supreme Court recognized a federal constitutional right to abortion in 1973 “can be harmonized” with the criminal statute as none of them compel actions it forbids, he said.

Morrisey also urged the court to abandon a doctrine holding that a law’s nonuse results in its modification or repeal. The doctrine isn’t applicable because the state stopped enforcing the criminal abortion law in light of Roe, not due to a policy decision, Morrisey said in the July 22 petition.

The American Civil Liberties Union, ACLU of West Virginia, Mountain State Justice, and the Cooley law firm represent the clinic. The West Virginia Attorney General’s Office and Alliance Defending Freedom represent the state.

Kentucky Ban Update

In Kentucky, Jefferson Circuit Court Chief Judge Mitch Perry blocked the state from enforcing a trigger ban—so named because it was triggered by the Supreme Court’s Dobbs decision—and a ban on abortions beginning at about six weeks into a pregnancy. He had previously issued a temporary restraining order.

Passed in 2019, the trigger ban prohibits all abortions except when necessary to save a pregnant person’s life or prevent serious physical impairment. The six-week ban precludes abortions after embryonic cardiac activity is detected. Neither law contains an exception for rape or incest.

The trigger ban unconstitutionally delegates legislative power “not just to a different branch of government, but a different jurisdictional body entirely,” Perry said in the July 18 opinion. By conditioning the law’s enforcement on the US Supreme Court’s decision in Dobbs, it runs afoul of the separation of powers doctrine, he said.

The law also is unconstitutionally vague, as it doesn’t adequately give notice of its effective date, Perry said. The state indicated that it would start enforcing the ban as of the date of the Supreme Court’s decision, but that decision didn’t actually become final until July 19, he said.

The six-week ban likely violates the Kentucky Constitution’s right to liberty and self-determination, Perry also said. The state charter has been held to offer greater privacy protection than the federal constitution, and the right to privacy has been recognized as an integral part of its guarantee of liberty since its adoption in 1891, he said.

Perry also said the laws exclusively burden women, and thus violate the Kentucky Constitution’s equal protection clause. And the six-week ban infringes on the state constitution’s religious clauses, as it espouses the “distinctly Christian and Catholic belief” that life begins at conception, he said. “Other faiths hold a wide variety of views on when life begins,” he said.

The laws challenged by EMW Women’s Surgical Center PSC and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, & Kentucky Inc. may not be enforced pending resolution on the merits, Perry said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

Craig Henry PLC, ACLU of Kentucky, O’Melveny & Myers LLP, American Civil Liberties Union Foundation, and Planned Parenthood Federation of America represent the providers. The state attorney general’s office represents Kentucky.

The cases are Morrisey v. Women’s Health Ctr. of W. Va., W. Va., No. 22-576, petition filed 7/22/22; EMW Women’s Surgical Ctr. v. Cameron, Ky. Cir. Ct., No. 22-CI-3225, 7/22/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com