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Gov. Justice plans special session on abortion law as soon as possible, following Morrisey opinion and Kanawha lawsuit

MORGANTOWN – Gov. Jim Justice said Thursday that a special session to clarify state abortion law will come “very very very soon.”

His statement comes on the heels of a Thursday memorandum from Attorney General Patrick Morrisey detailing the consequences of the U.S. Supreme Court decision overturning Roe v Wade, and a lawsuit filed in Kanawha County Circuit Court challenging state abortion law dating back to 1863.

Justice said he spoke with Morrisey about the memorandum. “I wholeheartedly agree we need to move faster and we need to move for further and more detailed clarification,” he said

He wants legislative leaders to get their materials in order so they can agree on the soonest possible date for the special session. Recent special sessions have been called to align with legislative interim meetings, when everyone is already in Charleston. The next set of meetings will be July 24-26.

Morrisey’s opinion

Morrisey released his 15-page memorandum Thursday evening. He highlights two of Justice Kavanaugh’s comments: “all of the states may evaluate the competing interests and decide how to address this consequential issue”; and, “an exception to a state’s restriction on abortion would be constitutionally required when an abortion is necessary to save the life of the mother.”

The state’s original law came over wholesale from Virginia in 1863 (drafted there in 1849) and was slightly tweaked in 1870. It says, “Any 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, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.”

Subsequent, post-Roe legislation, Morrisey said, includes the Women’s Access to Healthcare Act, adding penalties for partial-birth abortions; the parental notification law; the Pain-Capable Unborn Child Protection Act, which prohibits abortions after 22 weeks gestational age (20 weeks post-fertilization); a law forbidding dismemberment abortions; the Born-Alive Abortion Survivors Protection Act and the Unborn Child with Down Syndrome Protection and Education Act.

Morrisey said that state courts will likely use a variety of tools to harmonize them all.

He said, “The Attorney General stands ready to defend these statutes to their fullest extent. But courts may apply them in unexpected ways. For that reason, the Legislature is advised to re-enact a comprehensive framework governing abortions to avoid any potential variances among prohibitions, definitions, scope, exceptions, or otherwise.”

Following the last week’s Supreme Court ruling, called Dobbs, Morrisey said, courts may not second-guess a legislature’s judgment or “’substitute their social and economic beliefs for the judgment of legislative bodies,” even if “the laws at issue concern matters of great social significance and moral substance.’”

Morrisey also spends some time on possible regulation of the mifepristone, a progesterone blocking medication used in combination with misoprostol that can end an early pregnancy of 10 weeks or less.

He said that U.S. Attorney General Merrick Garland said after Dobbs that federal law will override any state attempts to regulate mifepristone because the FDA says it’s safe.

But Morrisey argues that states retain police powers over how medical professionals use drugs and Garland’s view misapplies FDA’s role of simply approving or disapproving drugs as safe or unsafe. He cites a court case that says, “If Congress wanted to preempt all state regulation of medication distribution and safety, it could have done so, but did not.”

Morrisey concludes, “The West Virginia Legislature is strongly advised to amend the laws in our State to provide for clear prohibitions on abortion that are consistent with Dobbs.”

Kanawha County case

The plaintiffs in this care are the Women’s Health Center of West Virginia (the state’s only abortion clinic), its physician (referred to as John Doe) and three named patients. Morrisey and Kanawha County Prosecutor Charles Miller are defendants.

The plaintiffs say that for the past 50 years, the law, which they call the Criminal Abortion Ban (a phrase that doesn’t appear in code), has not been enforced, having been replaced by a modern, comprehensive statutory regime, but it also hasn’t been repealed.

They say the 1870 law is illegal for three reasons: Modern law conflicts with it and by implication has repealed it; it has fallen into “desuetude,” meaning it’s unenforced and obsolete and reviving it would be fundamentally unfair; and it’s unconstitutionally vague because it “fails to provide a person of ordinary intelligence fair notice of what is prohibited and is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

The plaintiffs argue that “pregnant people denied an abortion will be faced with serious burdens and harms,” including attempting abortions on their own, having to take the risks of out-of-state travel, and giving birth to an unwanted child and thereby “putting at risk their health and lives, threatening their stability and security, and denying them autonomy and dignity.”

Plaintiffs want a restraining order or preliminary injunction placed against enforcing the 1870 law, and ultimately a permanent injunction, with a declaration that the law is repealed by implication, void through disuse and/or unconstitutional based on Article III, Section 10 that says, “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”

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