San Francisco – July 19, 2022 – Cooley secured a victory yesterday in the Kanawha County Circuit Court for the Women’s Health Center of West Virginia, as the court granted a preliminary injunction in a lawsuit against the state’s 150-year-old criminal abortion ban. Partner Kathleen Hartnett argued for the clinic, which is represented by Cooley in partnership with the American Civil Liberties Union Reproductive Freedom Project, ACLU West Virginia and Mountain State Justice.
The lawsuit, Women’s Health Center of West Virginia v. Miller, alleges that the criminal ban is unenforceable because the West Virginia Legislature impliedly repealed it over time by enacting a contemporary, comprehensive statutory framework regulating lawful abortion care.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 doctrine in West Virginia law providing that criminal laws that have gone unused for years – and in the meantime have been openly violated – cannot be revived.
“We are thrilled that the court recognized that West Virginia’s antiquated law criminalizing abortion care is illegal and cannot be enforced,” Hartnett said.
“Today’s ruling provides much-needed clarity on a law that dates back more than 150 years,” said Loree Stark, legal director of ACLU West Virginia. “This is a win not just for the plaintiffs, but for all West Virginians.”
In light of the US Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, the Women’s Health Center of West Virginia ceased providing abortion care, given the threat that West Virginia’s archaic criminal ban would be used to prosecute anyone who provides abortion care, helps someone access abortion care or obtains an abortion themselves. Yesterday’s decision means that the Women’s Health Center of West Virginia can once again serve its patients seeking abortion services.
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