Jun 29, 2022 - Health

Abortion providers sue to block West Virginia's 1800s pre-Roe ban

Picture of the Supreme Court building with abortion rights protesters walking in front of it

Photo: Al Drago/Bloomberg via Getty Images

Abortion providers in West Virginia filed a lawsuit Wednesday to prevent the state's pre-Roe abortion ban from taking effect now that the Supreme Court has overturned Roe v. Wade.

Why it matters: While no state action has been taken to activate the ban, which has been dormant since 1973 when Roe was decided, West Virginia's only abortion clinic has suspended services in fear of being prosecuted.

  • Shortly after Roe's fall, the state's attorney general said he would provide guidance to the legislature "about how it should proceed to save as many babies’ lives as humanly and legally possible."

Context: The statute, which was enacted by West Virginia’s legislature in the late 1800s, makes abortion illegal and punishable by up to 10 years in prison.

  • While the law criminalizes providers, it was used to prosecute patients seeking abortion care and their partners, according to a press release from the American Civil Liberties Union, which filed the lawsuit.

Details: The lawsuit argues that the pre-Roe ban should be considered void due to the "repeal by implication" doctrine, which has been previously recognized by West Virginia.

  • This doctrine holds that an old law becomes unenforceable when a new conflicting law is passed by the legislature. Under current state law, abortions are permitted up until the 22nd week of pregnancy.

What they're saying: "We will not stand by while this state is dragged back to the 1800s," said Loree Stark, legal director at the ACLU of West Virginia.

  • "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," Stark added.

Zoom out: Lawsuits have been filed in other states, like Michigan and Wisconsin, to stop pre-Roe bans from taking effect.

Go deeper: Nearly all abortions are illegal in 9 states but more bans are coming

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