Earlier this legislative session, West Virginia lawmakers began working to pass a bill they hoped would undo a 1993 state Supreme Court decision and allow them to ban nearly all Medicaid-funded abortions in the state. Later, they introduced a resolution meant to make sure the bill wasn’t ruled unconstitutional.
The second bill involves changing the West Virginia constitution, and several advocacy groups in West Virginia said they are worried about the repercussions. The following is a list of frequently asked questions and answers about what’s going on with these bills at the Legislature.
What does the first bill do?
In 2017 in West Virginia, a single woman making up to about $17,000 was eligible for a Medicaid-funded abortion. About 1,500 of those abortions took place, at a cost of about $320,000, according to the West Virginia Department of Health and Human Resources.
House Bill 4012 aims to keep tax dollars from being spent on those abortions.
“If she doesn’t want to look bad in a bathing suit, she can have an abortion paid for by the state,” said Karen Cross, who lobbies for the National Right to Life Committee. “We believe most taxpayers would limit that.”
Health care providers must find the abortion “medically necessary” — necessary for a woman’s well-being — for a Medicaid-funded abortion.
Supporters also suggested those women turn to adoption or help from the state.
Advocates for abortion rights have noted the bill solely affects poor women and families. Sharon Lewis, director of West Virginia’s only abortion clinic, the Women’s Health Center in Charleston, has said some women would go hungry or let bills go unpaid to pay for them.
Those advocates have also been outraged because the bill contains no exceptions for rape or incest victims.
Cross said, “Women who have been raped don’t need abortions,” adding that they need help and counseling, instead.
It’s unclear how many women would be affected by the legislation, but about one-third of the state is covered by Medicaid. DHHR officials have said they were searching for the total number of abortions in the state last year, but they have not provided them after numerous requests.
What would the amendment to the state constitution do?
Senate Joint Resolution 12, the “no constitutional right to abortion amendment,” aims to add a section to the West Virginia Constitution that says, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
Supporters have said the resolution is meant to make it easier to pass the House bill regarding Medicaid-funded abortions.
However, advocates for abortion rights have worried the resolution could clear the way for more abortion restrictions because the state constitution could no longer be used to argue against them. Some listened as Sen. Robert Karnes, R-Upshur and a sponsor, asked an attorney for the Senate Judiciary Committee if the resolution would allow lawmakers to ban abortion if Roe v. Wade were overturned.
Opponents haven’t been specific about what could happen. West Virginia already has numerous restrictions, such as a 20-week ban, waiting periods and a law that passed last year removing the ability for adolescent girls to go to court for permission for an abortion, instead of telling their parents, when a doctor says that would be best for them.
“I would just say this opens the floodgates for further restrictions,” said Margaret Chapman Pomponio, executive director of WV Free.
She noted that West Virginia already has strict laws surrounding abortion, but that those could be revisited. WV Free advocates for a full range of reproductive decisions, from access to birth control to abortion.
“The only thing West Virginia women and families will have is the federal constitution,” she said. “We will no longer have the pride of having a constitution that provides more rights and more health and safety than the federal one. This is taking us back in time.”
In January 2017, an abortion clinic in Kanawha City closed, leaving only one clinic in the state.
Joseph Cohen, executive director of the American Civil Liberties Union of West Virginia, worded it this way:
“There would be no impediment from the state constitution for anything they would want to do.”
How are the bills related?
In 1993, the West Virginia Legislature passed a law to prohibit Medicaid coverage of abortion except in cases of rape or incest or if the mother or fetus were not going to survive. That same year, the West Virginia Supreme Court overturned the law, finding it discriminated against poor women.
Last month, Delegate Kayla Kessinger, R-Fayette, introduced House Bill 4012, which would change state law to say an abortion is not considered medical care, unless it would save the woman’s life.
Some, including Delegate Barbara Fleischauer, D-Monongalia and one of the lawyers involved in the 1993 decision, and her husband Bob Bastress, a constitutional lawyer at West Virginia University, argued the bill conflicts with the state constitution and the state Supreme Court decision.
Supporters, such as Cross, Sen. Patricia Rucker, R-Jefferson, and Karnes said they hope, if the constitutional amendment passes, they won’t have to worry about the House bill standing up in court.
Will these bills lead
to women dying?
After the vote in the state Senate Friday, the ACLU sent out a statement from Cohen saying, “Today 25 members of the West Virginia Senate stated with absolute clarity that your sisters, wives and daughters should be required to carry a pregnancy to term even if doing so would literally kill them.”
“A woman can still get an abortion in West Virginia for any reason,” responded Wanda Franz, president of West Virginians for Life. “A woman has always been able to get an abortion to save her life, even before Roe v. Wade in 1973. It is a lie to say that women will die because of SJR 12.”
What’s the truth?
Thursday, senators rejected a motion by Sen. Corey Palumbo, D-Kanawha, to add exceptions for rape, incest and to save the mother’s life to the constitutional amendment. So it’s true the resolution doesn’t include an exemption for the life of the mother.
You could look at the prospect of women dying from another perspective, as well.
Sharon Lewis, who has worked at the Women’s Health Center for 29 years, remembers women taking desperate measures and abortion wards in hospitals women used to go to after botched abortions.
“Desperate women died,” she previously said.
Here’s what Cross had to say about that:
“You’re saying because the state doesn’t pay for them, they’re going to take desperate measures? I don’t understand what you’re saying.”
Does the constitutional amendment ban abortion?
No. The United States Supreme Court decision in Roe v. Wade still applies. Some supporters in the state, though, like Karnes, have said they hope to see that decision overturned.
What needs to happen
for the bills to pass?
So far, the Medicaid-funded abortion bill has passed one committee in the House of Delegates. It still has to make it through the full House of Delegates and the state Senate.
The resolution on the constitutional amendment has passed the state Senate. It still needs to pass the House of Delegates with a two-thirds majority and be put on a ballot in November.
The Health Not Politics campaign, a coalition of progressive groups in West Virginia, continues to advocate against both bills.
“I think they’ll work as hard as they can and spend whatever they have to spend,” Karnes said, referring to national pro-life groups.
After Tennessee passed a law with the same language in 2014, the law was tied up in court for four years over how the votes were counted.
Other states also have attempted to amend their constitutions to enact stricter laws around abortion. In Mississippi, voters struck down a personhood amendment. Opponents warned that by stating life begins at conception, the amendment could ban some types of birth control.
“We went with the Tennessee model in large part because it clearly worked,” Karnes said. “They did all the same type of deceptive messaging, but the people of Tennessee saw through it, and I believe the people of West Virginia will see through it.”