The state Senate will vote Friday on whether to host a constitutional referendum on the Legislature’s ability to restrict abortion rights.
The 17 words that comprise Senate Joint Resolution 12 could fundamentally change the legal landscape of women’s reproductive health in West Virginia.
“Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion,” the resolution states.
To pass, two-thirds of the Senate will need to vote for the resolution, meaning one of the 12 Senate Democrats would need to break from the party. The House of Delegates and Gov. Jim Justice would need to approve as well.
If it passes, voters will decide in November whether to change the state constitution to allow for legislation that would ban Medicaid from funding abortions in the state.
A 1993 state Supreme Court of Appeals decision ruled such legislation unconstitutional.
During the second reading of the resolution, where lawmakers offer and vote on amendments, Sen. Corey Palumbo, D-Kanawha, proposed a change to the language that would expressly allow for abortions and their funding through Medicaid if a woman is impregnated via rape or incest, or in order to save her life.
The Senate voted down the amendment 22-7, with five members absent for the vote.
One Democrat, Sen. Robert Plymale, D-Wayne, voted against the provision with the 21 Senate Republicans. He declined to comment on his decision Thursday afternoon.
Sens. Lynne Arvon, R-Raleigh, Richard Ojeda, D-Logan, Roman Prezioso, D-Marion, John Unger, D-Berkeley, and Mike Woelful, D-Cabell, were all absent for the vote.
Woelful attended a committee hearing later Thursday. He declined to comment where he was during the amendment vote or where he’ll stand Friday.
In a text message, Ojeda said he would have voted for the amendment Thursday, but declined to state what he was thinking for final passage.
Unger and Prezioso could not be reached Thursday.
During the floor debate, Senate Judiciary Chairman Charlie Trump, R-Morgan, spoke against the amendment.
He laid out a twofold argument in opposition. For one, as precedent, he said the Hyde Amendment prevents federal funds from being used for abortions.
Secondly, he said state code already allows the use of Medicaid funds to cover abortions in the case of rape, incest, to protect the life of the mother, or if there is evidence the fetus has severe congenital defects, terminal disease or is not expected to be delivered.
Trump also added there’s not much precedent for state constitutions expressly advocating for the right of women to receive abortions.
However, Palumbo said another piece of legislation, House Bill 4012, is under consideration in the House of Delegates that would nix the rape, incest and defects clauses of the current law. It would still allow for abortions to protect the life of the mother.
“I don’t think we’re giving any great comfort for women who are the victim of rape and incest, and even abortion to save their life, to say those protections are always going to remain in the statute, because they may not be in the statute by the end of this session,” he said.
Following the vote, Alisa Clements, director of public affairs for Planned Parenthood South Atlantic, said the Legislature is just playing political games and leaving poor women to pay the price.
“We’re still fighting it,” she said. “This is not an issue about women’s health, it’s about a political play. They are playing politics with women’s health care. They’re making this a fight against poor women in West Virginia, it’s politically driven.”
According to data from the Department of Health and Human Resources, Medicaid covered 1,560 abortions in 2017, a sharp increase from recent years. The program covered 1,217 abortions in 2016, 763 in 2015, and 544 in 2014.
DHHR has declined multiple information requests for a total number of abortions performed in the state.
In the 1993 ruling, the state Supreme Court of Appeals overturned a law similar to HB 4012. Then-Chief Justice Margaret Workman wrote in the majority opinion the law was unconstitutional because it discriminated against poor women who could not afford abortions without Medicaid.
House Bill 4012 passed the House Health and Human Resources Committee and is up for review in the House Judiciary Committee.
Senate Joint Resolution 12 is up for a final passage vote Friday morning.