MORGANTOWN, W.Va. — A West Virginia University law professor said he sees nothing in West Virginia’s Constitution that prohibits the Legislature from reconvening in a special session to override a gubernatorial veto.
“There’s no time limit in the override provisions of when the Legislature has to do it by and there’s no specification it has to do it during a regular session or during a special session called by the governor,” said Bob Bastress, a professor of U.S. constitutional law and West Virginia constitutional law.
Supporters of the Pain Capable Unborn Child Protection Act, a bill Governor Earl Ray Tomblin vetoed last week, are putting pressure on leaders of the state Senate and state House of Delegates to override that veto of HB 4588, a ban on abortions after 20 weeks into a pregnancy. The argument has been an unborn child or fetus can feel pain at that point in development.
Such an override vote can only be taken when lawmakers are in session and, currently, they are not.
Since it’s unlikely Tomblin will call a special session to allow for reconsideration, those with West Virginians For Life and their supporters are, instead, looking to a provision in the state Constitution that says a governor must call a special session if three-fifths of members of both the state Senate and state House of Delegates petition for it.
“There’s nothing in the Constitution, in my opinion, which would preclude that,” said Bastress. “Although I would have to say that the safer route for them would be to reenact the bill and then stay in session (awaiting a veto).” Bastress said lawmakers could recess, but not adjourn, pending action from the executive branch before taking an override vote to make the bill law.
Although such a move would be rare, Bastress said it would speak to the balance of power.
“The Constitution, in both veto provisions, specifically recognized the opportunity for a veto and, if the Legislature can’t convene itself to do that, then you’re depriving the Legislature of that opportunity,” he said on Wednesday’s MetroNews “Talkline.”
Most often, bills vetoed because of mistakes are taken up in a special session a governor calls, corrected and passed again with little controversy. However, in his veto message, Tomblin seemed to reject the entire fetal pain bill on its merits — calling it unconstitutional and unduly restrictive to the physician-patient relationship.