Senate President Jeff Kessler, D-Marshall, is asking Gov. Earl Ray Tomblin to call the Legislature into special session to pass a bill restricting late-term abortions to avoid having the Legislature call itself into session by petition.
“If we call ourselves into session, we’re in a general session for as long as we want, on as many topics as we want,” Kessler said. “To me, I think that’s ill-conceived.”
When the governor calls the Legislature into special session, he can limit the agenda to a specific issue or issues. Kessler said if the Legislature petitions the governor to call a special session, it is his understanding legislators would be free to introduce any bills they want on any matters.
Anti-abortion groups have indicated they are close to securing the signatures needed to require the governor to call a special session. Under the state Constitution, three-fifths of the members of each house, 60 delegates and 21 senators, must sign the petition letter in order to call themselves into session.
Kessler said he believes it is inevitable that the Legislature will pass a bill restricting late-term abortions, and said it is in the best interest of the Legislature and governor to resolve the issue sooner rather than later.
“It has the potential to be a very divisive and political issue that’s going to be played out between now and November,” Kessler said.
Tomblin spokesman Chris Stadelman said the governor is willing to work with the Legislature to pass an abortion bill that will be upheld as constitutional in the courts.
In March, Tomblin vetoed a bill passed by the Legislature to ban abortions of fetuses after 20 weeks’ gestation, on the advice of attorneys who said similar bans in other states had been overturned in court as being unconstitutional.
“The governor has said all along he would work with the Legislature to craft a bill that will meet constitutional muster,” Stadelman said. “If the Legislature suggests a bill that is constitutional, the governor will be happy to discuss that with them.”
Stadelman noted that courts have upheld abortion bans after 24 weeks’ gestation.
“I’ve always taken the position that every bill we pass is constitutional until a state court or the U.S. Supreme Court tells us it is not,” said Kessler, a practicing lawyer.
Kessler said that while there were issues with the bill as it passed the House, including potential felony charges for doctors performing late-term abortions, he believes the Senate had crafted a balanced bill that would stand up to a legal challenge. That bill passed the Senate on a 29-5 vote, and was approved by the House by an 83-15 margin.
Meanwhile, House Speaker Tim Miley, D-Harrison, said he shares Kessler’s concerns about an open-ended agenda if the Legislature calls itself into session, but said he would prefer to address the abortion issue in the 2015 regular session.
“I share President Kessler’s concern that if the Legislature calls itself into special session, the state constitution allows that any legislation on any subject matter may be introduced without limit, which could result in a long, drawn-out special session,” Miley said. “I still, however, support the governor’s offer to bring interested parties to the table during the 2015 regular session to work on compromise legislation that is, without question, considered constitutional.”
Miley said it would be costly for legislators to call themselves into special session if they have not reached a compromise with the governor on the bill.
“Until there is an indication of compromise legislation that the governor will sign, I can’t imagine he would want to convene a special session at significant taxpayer expense that could likely result in him vetoing the bill again,” Miley stated. “Even in the event of a veto override, a long, expensive legal battle would likely occur.”
Kessler disagreed, noting, “I think it behooves us all, quite frankly, to get this done now.”
The Legislature has called itself into special session three times: In 1868, to write the state Code; in 1955, in a West Virginia Education Association-driven campaign to pass teacher pay raises; and in 1981, to provide supplemental Social Security benefits. That year, however, the Senate adjourned without taking up the House-passed bill.
Reach Phil Kabler at firstname.lastname@example.org or 304348-1220.