A state constitutional amendment that would prohibit Medicaid from funding abortions could also have further-reaching effects on abortion rights in West Virginia, says both a legal expert and opponents.
Amendment 1, up for a vote in the general election, would add a line to the West Virginia Constitution that says “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
The amendment would undo a 1993 state Supreme Court decision that said low-income women had the right to an abortion with Medicaid funding.
If the amendment passes, Republican leaders and anti-abortion activists argue that the state law in section §9-2-11, which the 1993 decision ruled unconstitutional, would still require Medicaid to pay for abortions when the mother’s life is in danger, when there’s a fetal abnormality or when the pregnancy is a result of rape or incest.
“The taxpayer, in other words, would be off the hook for paying for elective abortions,” Mary Anne Buchanan, program director for West Virginians for Life, told a reporter at a recent rally for the Amendment. “That’s what this is about.
“In our way of thinking, this is a taxpayers’ rights amendment because people that don’t believe in abortion don’t feel like they should have to pay for them.”
At the same rally, state GOP chairwoman Melody Potter told a reporter she didn’t know how to answer a question about whether passing the amendment would lead to further restrictions on abortion.
“We just take one step at a time,” Potter said. “We’re just basically concerned about our taxpayer dollars going toward elective abortions in West Virginia. West Virginia is one of few states that offers that. There’s about 30 other states that do not offer taxpayer money for elective abortions.”
The Department of Health and Human Services said earlier this year that Medicaid paid for about 1,500 abortions in 2017 at a cost of $326,000. That’s up from 2008, when Medicaid paid for 657 abortions at a cost of $222,000.
But passage of the amendment could have bigger implications than ending Medicaid funding for the procedure, a legal expert said.
“I think we should just lay our cards on the table and have a real debate,” Anne Lofaso, a law professor at the West Virginia University College of Law, said. “People that want to do this think abortion is immoral and that’s fine. That’s a legitimate position. This [amendment] is a way of cutting into abortion rights.”
Lofaso said people who oppose abortion would make a better case by arguing what they believe — that there’s a child there that has the right to life and that abortion is murder.
On the other side of the debate, she said, are the people who feel that women have a right to make reproductive choices.
“I think until we have the real debate, we’re just going to keep on having legal fiction,” she said. “That’s what this is really about.”
The amendment would make it more difficult for women in West Virginia to successfully challenge state abortion restrictions, Lofaso said.
Under current law, a woman legally challenging abortion restriction currently can cite the federal and state constitutional right to abortion, adding Amendment One would mean one less way to challenge the restrictions.
“If Amendment 1 were to pass, there would be no way to challenge, in court, laws that restrict access to abortion under the state constitution,” said Joseph Cohen, director of the ACLU of West Virginia.
West Virginia currently has restrictions in place prohibiting abortions after 20 weeks and requiring a woman to have state-directed counseling and wait 24 hours before having an abortion.
If the federal court were to overturn Roe v. Wade, the constitutional amendment would criminalize abortion in West Virginia, Lofaso said.
“Right now abortion is lawful,” Lofaso said. “States can regulate abortion but they cannot ban abortion prior to viability. But West Virginia has kept on the books a law that criminalizes abortion even though it was found to be unconstitutional. Therefore [if] this constitutional amendment passes, that’s one less protection on the side of the woman’s side of the debate.
“So this is what will happen: If Roe v. Wade is overturned, then advocates of the law to criminalize abortion would say that, ‘law is now in effect and it cannot be saved by the West Virginia Constitution,’ if this amendment passes.”
Tennessee passed a similar anti-abortion amendment in 2014.
Since 2008, six other states — including North Dakota, South Dakota, Mississippi and Florida — have voted down such constitutional amendments, according to the National Institute for Reproductive Health.
Lofaso said West Virginia’s amendment goes too far in that it doesn’t include safeguards for the life of the mother.
She said if pro-life legislators wanted only to stop the Medicaid funding of abortion, they could have narrowed the amendment.
“If that’s what they really wanted, they [could] add a constitutional amendment that says, ‘OK, taxpayers will not pay for it,’ ” she said. “So that’s why I’m saying let’s stop playing games.”
Lofaso said that what’s more likely to happen than the federal Supreme Court overturning Roe v. Wade is the court restricting abortions after the fetus’ heartbeat can be detected, or around five weeks after the woman’s last period.
“How many people know they’re pregnant at that point?” she said. “That’s the problem. So the Supreme Court doesn’t have to overturn Roe v. Wade to make abortion essentially banned.”
A coalition of more than 30 West Virginia organizations — including the ACLU of West Virginia, WV Free, Planned Parenthood and the Women’s Health Center — has formed in opposition to the amendment.
“If Amendment 1 were to pass, women in West Virginia would have to rely on the federal courts to uphold the dignity to make their most private decisions with their doctors, their family and their faith,” Cohen, the ACLU director, said. “We know we’re in a position now where we can’t rely on the federal courts to do that.”
The election is Nov. 6. Early voting started Oct. 24.