Ever Since the Dobbs v. Jackson Women’s Health Organization draft opinion was leaked in the Spring of this year, the leadership of the House of Delegates has engaged our staff in researching and evaluating the State’s Abortion laws in anticipation of the decision overturning Roe v. Wade. We are a blessed generation to see the Roe decision be overturned and the power to regulate and abolish the barbaric practice of abortion returned to the states by the United States Supreme Court.
Since the issuance of the Dobbs decision the lone abortion clinic in this state has finally shut its doors. This is because while Roe may have caused our criminal statute regarding abortion to be unenforceable, our legislature has never repealed the statute and our State’s courts have never put in place an injunction against enforcement of the statute. In essence, our criminal statute “sprung back to life” the moment the U.S. Supreme Court issued the Dobbs decision.
W. Va. Code §61-2-8 defines abortion, encapsulates all methods of performing an abortion, provides a felony criminal penalty for the performance of an abortion, provides for a prosecution for murder should the abortion result in the mother perishing because of the procedure, and provides an affirmative defense for procedures necessary to protect the life of the mother. It does not criminalize behavior by the mother, but that of the abortionist performing the procedure. This statute was enacted in 1849 and has withstood countless challenges in State and Federal courts since its inception throughout the 20th century until Roe rendered the statute unenforceable. The statute has never been ruled “vague” or uncertain by our courts in close to 150 years. This statute is in compliance with the directives of the recent Dobbs decision by the United States Supreme Court.
When it comes to stopping the practice of on demand abortion in this state, we can thank the United States Supreme Court which had the courage to overturn the Roe and Casey decisions. This was not good enough for our Attorney General. Our Attorney General found it necessary, on June 29, 2022, without consultation with the Legislature, to issue a memorandum espousing a legal opinion regarding our state’s abortion laws that concluded they were “vague” and required the legislature to convene and act. This opinion was not solicited by the Legislature, his client, and was done in full knowledge of several lawsuits being filed to enjoin the enforcement of our abortion statutes by the ACLU and other left-wing activist organizations. The very pleadings filed by these organizations attacking our State’s 150-year-old abortion statutes allege they are unconstitutionally “vague.”
If the Attorney General truly felt this way and was not simply trying to capture the spotlight for himself in this moment, he would have consulted with his client privately to advise them of his reservations rather than airing them publicly before even consulting his client. The Attorney General’s short-sighted memorandum obliterates any argument he could make against these organizations in Court. He may as well have donated cash to Planned Parenthood’s legal fund, it would not have been as bad as this.
Attorney General Morrisey has handed these activist organizations seeking to overturn the will of the people of West Virginia the very legal reasoning they needed to achieve an injunction. Attorney General Morrisey has effectively disqualified himself and his office from defending our State’s abortion prohibitions. By issuing this memorandum essentially agreeing with the likes of the ACLU and Planned Parenthood he has single-handedly dealt a huge blow to what should be a victorious moment for the Pro-Life movement in our state.
Make no mistake about it, the Attorney General has forced the Legislature and the Governor to act. If there were no confusion, there certainly is now as to the status of our State’s abortion laws. Fortunately, your Republican-led legislature has been focused on this issue for months, evaluating our current laws and planning for contingencies. I anticipate the House arriving at a consensus on this issue quickly and soberly, leading from the front, and delivering the will of the People of this State in short order. Make no mistake about it, we are a Pro-Life House, and always have been. This issue has been a priority for us for many years. While it is unfortunate that the Attorney General has dealt such a severe blow to the Pro-Life movement in this State, I have full confidence in the House of Delegates to repair the damage caused by the Attorney General with his memorandum of June 29, 2022 attacking the validity of the abortion laws of this State.
If W. V. 69-2-8 was enacted in 1849 as stated, I too, would challenge its validity since that was 14 years before WV became a state.
With a law that old, it should be reviewed and scrutinized carefully and brought up to date, if it is still able to be enacted as state law. Hopefully if after it is looked at, I hope that lawmakers would think about the rights of victims of rape and incest and the violations that are cast on them by those who have assaulted them against their will. It appears that where the laws have taken effect, the victims would not be able have equal Justice and their rights violated especially if they get pregnant because the assault. So if this law is enacted, the rights of the victims must not be ignored.