Case: Women's Health Center of West Virginia v. Miller

On June 29, 2022, the Women's Health Center of West Virginia filed this lawsuit to challenge the enforceability of West Virginia's “Criminal Abortion Ban” which was enacted in the 1800s and used to punish abortion care providers, women seeking abortions, and their partners (W. Va. Code § 61-2-8 ). With the help of the ACLU, Plaintiffs brought this suit in the Circuit Court of Kanawha County, West Virginia, claiming that though the ban has been dormant and replaced by a ​​modern legal regime that recognizes the provision of legal abortion in the state, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization requires the court to clarify that the ban cannot be enforced. This argument was asserted under the doctrine of “repeal by implication,” the claim that the ban has fallen into desuetude, and that the ban is unconstitutionally vague. Plaintiffs sought (1) both a preliminary and a permanent injunction prohibiting the enforcement of the “Criminal Abortion Ban,” (2) declaratory relief stating that the ban is either impliedly repealed, void for desuetude, and/or a violation of Article III, Section 10 of the West Virginia Constitution, and (3) attorneys fees and costs. This case was assigned to Judge Tera L. Salango. 

This case (22-C-556) was consolidated with four other cases: Dr. John Doe v. Miller (22-C-557), Debra Beatty v. Miller (22-C-558), Danielle Maness v. Miller (22-C-559), and Katie Quinonez v. Miller (22-C-560). All five cases were filed in the Circuit Court of Kanawha County, West Virginia on June 29, 2022, and consolidated as one case on July 1, 2022. The original complaint filed for this case (22-C-556) on June 29, 2022 includes all the above plaintiffs. Each of the plaintiffs in these four cases are employed by the Women's Health Center of West Virginia in various capacities.

On July 18, 2022, Judge Salango granted Plaintiff’s motion for a preliminary injunction, prohibiting the enforcement of the ban while litigation proceeds and allowing abortion care to resume. The court found that a preliminary injunction would be appropriate to maintain the status quo, considering that the ban had been dormant for half a century and that the West Virginia legislature could have passed a trigger law but chose not to. In light of this order, the Attorney General of West Virginia sought an emergency stay of the preliminary injunction in the Supreme Court of Appeals of West Virginia on July 19, 2022, and on July 21, 2022, he filed an appeal to the preliminary injunction.

On September 13, the West Virginia Legislature enacted a new-total abortion ban. The new law explicitly repealed the Criminal Abortion Ban that plaintiffs challenged in this case. Consequently, the Supreme Court of Appeals dismissed the Attorney General's appeal as moot and remanded the case back to the trial court. The case is presumed closed, although the Clearinghouse does not have access to any additional information after the Supreme Court of Appeals' remand.