COVID-19 Summary: On March 31, 2020, the Women’s Health Center of West Virginia and its patients brought this suit against West Virginia to enjoin the state enforcing the Governor's Executive Order which prevents people from obtaining abortion care during COVID-19. The plaintiffs sought preliminary injunction and a temporary restraining order. On April 28, the defendant announced a new Executive Order which allowed the plaintiffs to resume its operations. With the new order, the plaintiffs voluntarily dismissed the case on May 6, which the court approved the next day. The case is now closed.
On March 31, 2020, West Virginia Governor Jim Justice issued Executive Order (EO) 16-20 due to the COVID-19 outbreak. The EO was intended to promote public health and safety by limiting movement throughout the state and conserving limited medical resources and personnel. The Order indefinitely banned all "elective medical procedures". EO 16-20 prevented the plaintiff, Women’s Health Center (WHC) of West Virginia, from performing abortions except under extremely narrow circumstances. WHC is the only outpatient healthcare facility in West Virginia that provides abortions. On April 24, 2020, the plaintiff filed this lawsuit in the U.S. District Court for the Southern District of West Virginia. The plaintiff sued West Virginia, the West Virginia Department of Health and Human Resources, the West Virginia Board of Medicine, and the prosecuting attorney for Kanawha County under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.
The plaintiff, represented by the American Civil Liberties Union (ACLU) of West Virginia and private counsel, sought injunctive and declaratory relief claiming violations of the Fourteenth Amendment’s Equal Protection Clause and Due Process Clause. The complain alleged that West Virginia Executive Order 16-20 violated patients’ constitutional rights by prohibiting "elective medical procedures.” Specifically, the way the defendants interpreted the Order prevented the plaintiff from providing abortions unless the patient is at or near the legal limit for medication abortion or the patient is at or near the point after which she could not obtain any abortion. Over 90% of the abortions the plaintiff had scheduled before the Order went into effect had to be cancelled or rescheduled.
On April 20, 2020 the Governor issued Executive Order 28-20, which amended Executive Order 16-20 to allow hospitals and ambulatory surgical centers regulated by the Office of Health Facilities Licensure and Certification (OHFLAC) to submit a plan asking permission to resume urgent elective medical procedures. The plaintiff is not a hospital or ambulatory surgical center and was not eligible to submit a plan.
On April 24, 2020 the plaintiff filed an emergency motion for a temporary restraining order and preliminary injunction to prevent defendants from enforcing Executive Order 16-20. On April 28, 2020, the defendant notified the court of yet another Executive Order 30-20, with an effective date of April 30, 2020. Executive Order 30-20 terminated Executive Order 16-20 for all facilities and health care providers except for hospitals and surgical centers regulated by OHFLAC. Executive Order 30-20 allowed clinics, offices and other facilities operated by or with licensed medical or health care professionals to resume all operations and procedures, including elective procedures. This Order allowed the plaintiff to resume its daily operations and continue to provide abortions.
Because EO 30-20 solved its problem, on May 6, 2020, the plaintiff filed a notice of voluntary dismissal. On May 7, 2020 Chief Judge Thomas E. Johnston entered a dismissal order and the case was dismissed without prejudice. The case is now closed.
Sabrina Glavota - 05/19/2020
Averyn Lee - 09/17/2020
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