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(LifeSiteNews) – Kanawha Conty Circuit Judge Tera Salango issued a temporary injunction Monday against enforcement of West Virginia’s 1849 law banning abortion, which was reactivated after the U.S. Supreme Court’s decision last month to overturn Roe v. Wade.
On June 29, West Virginia Attorney General Patrick Morrisey certified that the 170-year-old law criminalizing abortion “is on the books and enforceable” after the Supreme Court’s 5-4 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe and restore the elected branches of government’s right to directly decide abortion policy.
The law declares that anyone who intentionally performs a surgical or chemical abortion “shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than 10 years.” Morrisey advised state lawmakers to hold a special legislative session to modernize and clarify aspects of the law, such as whether abortion-seeking women would face penalties.
West Virginia Republican Gov. Jim Justice announced such a session, but The Epoch Times reported that the judge opted to take matters into her own hands in response to a lawsuit by the state’s only abortion facility, Women’s Health Center of West Virginia.
Claiming that more recent state pro-life laws “hopelessly conflict with the criminal abortion ban,” Salango declared that it would be “inequitable” to allow the old law to be enforced for the time being.
“The code is replete with examples of undeniable conflicts in the law that appear fundamental and irreconcilable, making the law incompatible by any reading,” she wrote. “Perhaps when it was drafted, that legislation was sufficient. However, in today’s world, it is simply too vague to be applied.”
“This is a dark day for West Virginia,” Morrisey responded. “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.”
“The statutes do not irreconcilably conflict since civil laws dealt with numerous aspects of unregulated post-Roe abortion, offered alternative enforcement methods in the face of Roe’s restrictions on the criminal statute and are similar to other situations where criminal and civil statutes dealing with the same topic exist in West Virginia law,” the attorney general’s office argues. “Also, the Legislature never intended to repeal and replace the Act when it passed post-Roe regulations, and the historical evidence proves this.”
Roe v. Wade’s overturn sparked the activation of numerous pre-Roe abortion bans that had gone unenforced for decades, as well as more recent pro-life laws that had been blocked by courts, and trigger laws designed not to take effect until Roe was reversed. Across the country, abortion giant Planned Parenthood has suspended abortions and/or closed locations in reaction to the ruling, and pro-life attorneys general have declared their intentions to enforce their states’ duly-enacted abortion prohibitions.
But leftists prosecutors in dozens of localities have vowed not to enforce such laws, ensuring that work and debate will continue over the prospect of banning abortion nationally. Pro-abortion activists’ emphasis on supporting interstate travel for abortion also presents a challenge to pro-life policymakers, though groups such as the Thomas More Society and National Association of Christian Lawmakers are currently exploring potential solutions. President Joe Biden has called for electing more Democrats to Congress to support codifying a “right” to abortion-on-demand in federal law.