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West Virginia AG: State’s 1849 Pro-life Law Has Taken Effect Following Roe Reversal

‘An 1849 law criminalizing the provision of abortion for a health-care provider, and arguably the woman, is on the books and enforceable,’ West Virginia Attorney General Patrick Morrisey said.

CHARLESTON, West Virginia — The Republican Attorney General of West Virginia has announced that a more than 170-year-old law making abortion a felony is now enforceable following the U.S. Supreme Court’s reversal of Roe v. Wade last week.

In a June 29 memorandum, West Virginia Attorney General Patrick Morrisey said that an 1849 law banning abortion could now take effect following the U.S. Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization, in which the Court returned the right to regulate abortion back to the states by overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

“An 1849 law criminalizing the provision of abortion for a health-care provider, and arguably the woman, is on the books and enforceable,” wrote Morrisey, who ran for the U.S. Senate in 2018 with then-president Donald Trump’s endorsement before narrowly losing to Democratic incumbent Sen. Joe Manchin.

West Virginia State Code §61-2-8, which Morrisey said had been “[e]nacted in 1849 and never repealed since,” had become a dead letter after the Supreme Court established a “Constitutional right to abortion” in Roe v. Wade. 

Now enforceable following the rollback of Roe, the pro-life law declares that anyone who intentionally performs an abortion through surgical or pharmaceutical means “shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years.” §61-2-8 would also require the prosecution of abortionists if a woman dies as a result of the abortion procedure.

The 173-year-old law contains a carveout for abortions done in “good faith” to save the life of the mother or child. Many pro-life advocates argue that there is never a circumstance in which abortion is medically necessary.

Morrisey said in the memo that while the state’s abortion ban is now in effect and enforceable, the legislature “is strongly advised to amend the laws in our State to provide for clear prohibitions on abortion that are consistent with” the Supreme Court’s ruling in Dobbs.

According to Morrisey, the special legislative session will be needed to “focus on several crucial areas,” including “specifying the acts that are subject to criminal prosecution and determining whether a woman should be subject to prosecution,” defining potential exceptions, and examining “the scope of medical practice related to restrictions or eliminations of the use of abortifacients.”

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