CHARLESTON, WV (WOWK) – A lawsuit has been filed to prevent a law in the West Virginia State Code from the 1800s from the possibility of taking effect after the United States Supreme Court overturned Roe v. Wade last week.

The ACLU of West Virginia, ACLU, Mountain State Justice and Cooley Law Firm announced on Wednesday, June 29, 2022, that the lawsuit had been filed on behalf of the Women’s Health Center of West Virginia and its staff in the Kanawha County Circuit Court.

On Friday, June, 24, the Supreme Court ruled that the U.S. Constitution does not provide a right to abortion. The decision eliminates the nearly 50-year-old ruling from Roe v. Wade that the Constitution did provide that right and returns the right to limit or ban abortions to state governments.

Now, the question as to where West Virginia’s state-level abortion law stands is still unclear.

West Virginia has recent laws, including banning abortion past 20 weeks and if the child will be born with a disability. But there is a law on the books that’s even older than the state that calls abortion a felony offense. That law was an 1848 holdover law from Virginia.

West Virginia Attorney General Patrick Morrisey told WOWK 13 News on Friday that his office does not know yet if that 174-year-old law would be in effect now that Roe v. Wade has been overturned. On Tuesday, June 28, he told WOWK 13 News Reporter Rachel Pellegrino that he expects to provide lawmakers with an opinion sometime this week.

As of now, the state’s oldest law on abortion in the WV State Code (F) reads:

Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.

WEST VIRGINIA STATE CODE §61-2-8

Under that law, if found guilty the patient and/or doctor could face no less than 3 years and as many as ten years behind bars.

The ACLU-WV lawsuit claims that the old law should be voided due to more recent laws that have been passed over the years that conflict with the original law.

“We will not stand by while this state is dragged back to the 1800s,” said ACLU-WV legal Director Loree Stark. “Every day that uncertainty remains about the enforceability of this statute is another day that West Virginians are being denied critical, life-saving healthcare. That’s why we are asking the Court to make it clear this law cannot be enforced.”