Law Scholars Question State's Next Steps After Roe

The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization returns decision-making power on abortions to the states. But it’s unclear what that means in West Virginia.

Passed in 1848 as a Virginia law, West Virginia §61-2-8 makes receiving or performing abortions a felony, punishable by three to 10 years in prison.

Some say that Friday’s ruling automatically puts §61-2-8 back in force. However, West Virginia University College of Law Professor Anne Lofaso says the law remains unenforceable at this time.

“When Roe v. Wade came down in 1973, within a year this law was challenged in court and said ‘You can’t enforce this law because of Roe v. Wade,’” Lofaso said.

Lofaso is the co-founder of WVU’s U.S. Supreme Court Clinic. She says the West Virginia law doesn’t qualify as a trigger law, because the injunction remains in place even if Roe was overturned.

“That law is still good,” Lofaso said. “It’s on the books, but it’s been enjoined, which means it can’t be enforced. So the next question is, will the attorney general try and go to courts and lift the injunction?”

Lofaso said one of the other options is to allow the state legislature to clarify the issue.

In a statement, Attorney General Patrick Morrisey said he will provide a legal opinion to the Legislature about how it should proceed.

If Morrisey does choose to go to the courts, there are several legal avenues available to him.

Via e-mail, WVU College of Law Professor Robert Bastress said the attorney general could bring a mandamus to either a circuit court or the state’s Supreme Court to compel enforcement of the statute.

A mandamus is a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

“Or (Morrisey) could file a declaratory judgment claim in a circuit court seeking a ruling that the old law is enforceable,” Bastress said.

Further complicating the issue is a 2018 amendment to the state’s Constitution.

“Amendment One, which is now under Article Five, section 57 in the West Virginia Constitution, says nothing in this constitution secures or protects a right to abortion or requires funding of abortion,” Lofaso said.

Even if West Virginia’s law is unenforceable for the moment, the impact of the ruling is already being felt in the state. Within hours of the court’s ruling, Katie Quinonez, the executive director of Women’s Health Center of West Virginia, released a statement saying that it was now impossible for the clinic to provide abortions.

“They’re being chilled, because who wants to perform an abortion and then go to jail for 10 years,” Lofaso said. “It’s not safe for them at this point in terms of, they don’t want to commit a crime.”

Lofaso said it is possible both the West Virginia legislature and Congress may make exceptions for abortions in cases of risk of life to the mother in future legislation. However, she believes it is exceedingly unlikely that the protections that Roe v. Wade provided will be codified at any level of government.