Cooley Challenges West Virginia Law Criminalizing Abortion
San Francisco – June 30, 2022 – Cooley partnered with the American Civil Liberties Union, the ACLU of West Virginia and Mountain State Justice to file a lawsuit in the Kanawha County Circuit Court challenging a West Virginia law that criminalizes virtually all abortion care. Partners Kathleen Hartnett and Marc Suskin, along with associates Julie Veroff, Patrick Hayden and Darina Shtrakhman, led the Cooley team.
The West Virginia law was enacted in the late 1800s and used through the 1960s to prosecute healthcare providers, pregnant people and their spouses. After Roe v. Wade, various courts held that the law at issue was unconstitutional, but it was never formally enjoined or repealed, and it has lain dormant for the last several decades. With the US Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, there is concern in West Virginia that the criminal ban can now be revived and used to prosecute anyone who provides abortion care, helps someone access abortion care or obtains an abortion themselves.
The lead plaintiff in the case is the Women’s Health Center of West Virginia. The lawsuit argues that West Virginia’s criminal ban is unenforceable because the West Virginia Legislature impliedly repealed it over time by enacting a contemporary, comprehensive statutory framework regulating lawful abortion care. The suit also argues that the law is void for desuetude, a theory under West Virginia statute providing that criminal laws that have gone unused for years – and in the meantime have been openly violated – cannot be revived.
“We look forward to demonstrating that this archaic law is null and void,” Hartnett said in a statement. “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.”
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