What a relief to know there are still courts that make decisions based on the rule of law rather than personal or political opinions.
Judge Tera Salango of the Kanawha Circuit Court issued a well-founded and level-headed injunction against the 1800s law banning virtually all abortions in West Virginia.
The law in question prohibits all abortions except when done in “good faith” to save the mother’s life; it also says “anyone” who administers to or causes a woman to take any drug or undergo any procedure for the purpose of aborting a fetus can be convicted and imprisoned for three to 10 years.
Salango rightfully makes the point that the language of the old law is unfairly vague, and it contradicts newer laws. Most modern laws do not penalize the pregnant woman for an abortion, but the 1800s law is so vague that it could be used to prosecute not only the doctor who performs the abortion, but the mother and anyone who assists either the doctor or the mother in the process of obtaining an abortion. Specifically, she said, “It simply does not matter whether you are pro-choice or pro-life, every citizen in this state has a right to clearly know the laws under which they are expected to live.”
Salango also rightfully takes issue with the imprecise “good faith” exception — “Who determines what that good faith is?” — and points out the law could be interpreted and enforced differently across the state. She’s not wrong. Counties with liberal strongholds are likely to interpret “good faith” more widely; more conservative counties are more likely to decide almost nothing constitutes a “good faith” reason for terminating a pregnancy.
Attorney General Patrick Morrisey has declared the state will appeal the injunction to the West Virginia Supreme Court, though we can’t fathom why.
Everyone from the governor to the Legislature to the courts has said the 1800s law is ambiguous, outdated, contradictory to current law and needs to be revisited and clarified. Why is Morrisey so determined to put this archaic statute into effect when there are already plans to create a clearer law?
Virtually every state that had a trigger law take effect after the Dobbs decision — particularly Texas, which allows civilians to bring lawsuits against providers — has seen unintended consequences.
The treatment for most miscarriages is almost identical to the treatment for an abortion. With so many anti-abortion laws targeting the procedures, medications and end result — not just the reason — doctors and pharmacists are terrified to run afoul of the laws and are neglecting to give women who are miscarrying the medical care they need.
One Texas woman detailed to the New York Times the very different experiences she had with her two miscarriages, eight months apart. The first time, she awoke from her dilation and curettage (D&C) procedure to find a card from the nurses and a bracelet with a butterfly charm. After Texas passed its abortion ban, she had another miscarriage and went to the same hospital. Despite the lack of fetal heartbeat, she was denied the D&C and sent home. She spent the next 48 hours in extreme pain as she passed massive blood clots.
The fight for misoprostol and mifepristone — used for medication abortion but also to treat miscarriages — has also been a difficult one. Pharmacists face the same penalties as doctors, so women are now having to wait for “extra approval” or being forced to detail, in public, why they are getting the medication.
Not treating a miscarriage in a timely manner can be extremely dangerous for women. The longer the fetal remains stay inside her body, the more likely the woman is to experience fertility issues, infections, hemorrhaging and/or sepsis. A study from two Dallas hospitals followed 28 women who miscarried and weren’t given medical treatment until their lives were in “immediate danger” or the fetus’ heartbeat stopped. On average, the women had to wait nine days before receiving treatment, and 57% of them returned with serious infections, bleeding or other health complications.
Unreasonably strict and/or ambiguous abortion laws are putting women’s lives at risk. Salango was not only right to block the 1800s law — she’s likely saved many women’s lives. Morrisey needs to let this one go.
