Attorney General Patrick Morrisey is proceeding with his interpretation of an executive order suspending elective surgeries as including abortion procedures.
That’s despite what seems to be a very clear exception in the order for “procedures that cannot be performed consistent with other law at a later date.”
Under state law, abortions become illegal after 20 weeks’ gestation, with limited exceptions if the life or health of the woman is at risk or in cases of rape and incest.
Morrisey’s office did not respond to multiple requests from my colleague Caity Coyne to elaborate on his stance after Gov. Jim Justice issued the executive order because of the coronavirus pandemic. So I decided to catch Morrisey on his walk down the main hallway of the Capitol from the governor’s conference room to his office.
(As the only person currently working in the Capitol Press Room, I figure I can social-distance as well from here as from home — plus, there are still snacks from the West Virginia Press Association here in the basement left over from the legislative session.)
When I asked Morrisey how the language in the executive order does not spell out an exception for abortions, he responded with either such brilliant jurisprudence that it was beyond my ability to comprehend or with such a nonsensical word salad that I had to replay the tape to make sure I hadn’t transcribed it erroneously.
He said: “When you have a public health emergency, there’s a specific authority that’s provided to protect the public health. That doesn’t just wipe away every law, so you have to make sure that any other laws on the books, you analyze them, and that’s why the provision’s there.”
Well, that clears things up.
Morrisey is following the same playbook at least five other states tried to play to use the pandemic as an excuse to do what they cannot do by law, which is to effectively ban abortions, at least for a time.
Justice was complicit in all this. When asked in a briefing to address concerns that his executive order would effectively ban abortions, the normally loquacious Justice handed the question off to Morrisey. Speculation is Morrisey agreed to back off raising issues that certain executive orders Justice has issued may exceed his legal authority in exchange for getting to use the elective surgery suspension as an anti-abortion decree.
In retrospect, the executive order otherwise is pretty much superfluous, since virtually all hospitals and clinics in the state already were following federal guidance to suspend elective procedures well prior to Justice’s executive order.
What is most callous about the actions of Morrisey and Justice is that the executive order is likely to be in effect, not for days, but for weeks and likely, for months.
The practical effect of using the executive order as a pretense to shutter the only abortion facility in the state would be to force women to travel to out-of-state abortion providers at a time when interstate travel is being discouraged, and likely forcing them to travel from a region with a relatively low infection rate into COVID-19 hot spots.
Morrisey and Justice are putting the health and well-being of these women at risk — not to mention imposing additional expenses and challenges at a time when many West Virginians are experiencing financial hardships — all to pander to a narrow band of constituents in an election year.
Speaking of elections, just 10 days ago, Justice was still expressing reluctance to postpone the scheduled May 12 primary election, saying, “We’re going to have a free and fair election, and I hope we’re going to have it on time.”
Last week in this space, I laid out some reasons why that was not a good idea, mainly because it would put poll workers and election officials at risk, but also because the inability for candidates to participate in any sort of conventional campaigning would give a tremendous advantage to incumbents, some of whom are using the crisis to foist upon themselves an aura of gravitas.
Lo and behold Wednesday, Justice, Secretary of State Mac Warner, and Morrisey announced the decision to delay the election until June 9.
While that date is an improvement, it’s not a panacea, falling a month after the projected peak of COVID-19 cases in the state.
Of course, unlike a tornado, where the day after the storm, you can assess damage, treat the injured, bury the dead and start rebuilding, the peak is not the end of the pandemic.
A month after the peak, we’ll essentially be where we are now, a month before the peak, with the difference being the cases will be declining, not increasing.
People, presumably, still will be taking precautions and while efforts at social distancing and hygiene might be scaling down, things most definitely won’t be back to normal. The virus will still be out there.
It still leaves challengers a narrow window of time to get their names and campaign platforms out to the voters, particularly given the likelihood that a hesitancy to assemble in crowds of even nominal size will linger for a long time.
Still, it’s another incremental step for a governor who has gone from, “If you want to eat at Bob Evans, eat at Bob Evans,” to closing dine-in restaurants, bars and casinos, followed by non-essential businesses (again, with a whole lot of everything defined as essential), and going from “It’s important that schools remain open” to closing schools until March 27, then to April 20, and currently to April 30, with the likely next announcement being that they are closed for the remainder of the school year.
At times during the pandemic, Justice has been slow to act, but his performance has been far superior to many of his fellow Republican governors who refused to take action to curb the spread of the virus until after serious harm was done.
Speaking of Justice, the pandemic pushed off the front page news that his coal mining companies had agreed to a nearly $5 million settlement in federal court to resolve fines for mine safety violations.
Mine safety inspectors had cited Justice mines for 2,297 safety violations — 2,297. Justice likes to say that nobody loves West Virginia more than he does. Repeatedly putting miners in harm’s way is certainly a strange way to show it.
Finally, given that the state financially is in Wile E. Coyote mode — having run off the side of the cliff but having not yet succumbed to gravity — a special session of the Legislature to transfer Rainy Day reserve funds to cover April revenue shortfalls is all but certain.
What is not certain is how to hold legislative sessions in the midst of a pandemic.
At issue is how to practice social distancing when you have 100 delegates in one chamber and 34 senators in another (along with staff, aides and attorneys.)
Senate Clerk Lee Cassis and House Clerk Steve Harrison are putting their heads together, and also reaching out to their counterparts in other states to come up with a plan.
Rules for both the House and Senate require members to be in their respective chambers when voting, and the clerks are looking at the possibility of adopting emergency rules to provide alternative voting methods.
The state Constitution gives the governor authority to convene the Legislature “at another place” if in his opinion, “the public safety or welfare, or the safety of the members, or their health shall require it.”
Cassis said the Legislature is looking to Arkansas as a possible example. The Arkansas General Assembly was called into special session 11 days ago, similarly, to close a gaping shortfall in the state budget.
In order to maintain social distancing, the House moved its floor sessions to the basketball arena at the University of Arkansas-Little Rock, a 5,600-seat facility that provided plenty of space for members to spread out.
The Senate met in chambers as usual, but only 20 of the 35 senators were permitted on the Senate floor. The other 15 senators were seated in galleries overlooking the chamber — space normally open to the public.
Charleston Coliseum & Convention Center anyone?