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June 29, 2022

CHARLESTON, W.Va. – Following the shameful decision by the U.S. Supreme Court to overturn Roe v. Wade – the landmark decision that acknowledged the right to an abortion to millions of Americans for nearly five decades – West Virginia medical providers and advocates have filed a lawsuit to prevent the enforcement of an archaic and cruel abortion ban in state court. Fear of prosecution under this outdated law has already forced the state’s only abortion clinic to suspend abortion services and turn away patients seeking essential care.

The American Civil Liberties Union (ACLU), ACLU of West Virginia (ACLU-WV), Mountain State Justice (MSJ) and the Cooley law firm filed the lawsuit in Kanawha County Circuit Court on Wednesday, June 29, 2022 on behalf of Women’s Health Center of West Virginia (WHC) and its staff.

The statute in question, enacted by the state legislature in the late 1800s, not only criminalized the provision of abortion care, but was also used to punish the person seeking the abortion (and even their partners).

The lawsuit argues the statute should be considered void under the doctrine of “repeal by implication,” a legal concept recognized in West Virginia courts that holds an older law is made void when a newer, conflicting law is passed. West Virginia lawmakers have passed law after law over the years regulating the provision of legal abortion, and many of them conflict with the provisions of the criminal abortion statute, ACLU-WV Legal Director Loree Stark said. 

“We will not stand by while this state is dragged back to the 1800s,” Stark said. “Every day that uncertainty remains about the enforceability of this statute is another day that West Virginians are being denied critical, lifesaving healthcare. That’s why we are asking the Court to make it clear this law cannot be enforced.”

Alexa Kolbi-Molinas, Deputy Director of the ACLU Reproductive Freedom Project, said: “the Supreme Court ruling was an unprecedented attack on reproductive freedom.”

“No one should be forced to carry a pregnancy against their will and face the life-altering consequences of being denied essential health care,” Kolbi-Molinas said. “Our access to abortion shouldn’t depend on where we live, how much money we make, or who we are.  We will continue to fight to protect our freedom to make our own decisions about our bodies and our futures in West Virginia and across the country.”

Katie Quiñonez, WHC Executive Director, said: “With the overturning of Roe v. Wade, our worst nightmares have become reality. Because of the uncertainty over this state law, we have ceased providing abortion care to our patients out of concern for their safety, as well as the safety of our staff members.

“I worry deeply about our most vulnerable patients who are left with few and difficult options — those who cannot make the expensive trip to travel out of state, will either be forced to continue their pregnancies against their will, or risk criminalization by self-managing their own abortion.”

Sarah K. Brown, Mountain State Justice Executive Director, said the law’s impact on the health and wellbeing of West Virginians cannot be overstated.

“The law in question has not been enforced for 50 years,” Brown said. “There should never be uncertainty between West Virginians and their medical providers.”

Kathleen Hartnett, Cooley LLP, said: “We look forward to demonstrating that this archaic law is null and void. Cooley is proud to work with the ACLU and Mountain State Justice on behalf of our clients at the Women’s Health Center of West Virginia to redress the irreparable harm this law is causing.”