It appears pro-life lawmakers have an easier route than first thought if they want to overturn Governor Earl Ray Tomblin’s veto of the fetal pain bill. The legislation prohibited abortions after 20 weeks unless a medical emergency existed.
Initially, the general consensus under the Capitol Dome was that lawmakers could not override a veto once the Legislature adjourned their regular session. Tomblin vetoed the measure March 28th, two weeks after the Legislature adjourned sine die (without assigning a day for any future meeting).
However, at least two legal experts I have spoken with believe the override is still possible. State Attorney General Patrick Morrisey and WVU Law School professor and state constitutional scholar Bob Bastress may be on opposite ends of the political spectrum, but they agree on this question.
Bastress, author of The West Virginia State Constitution, said on Metronews Talkline recently that there’s nothing in the Constitution that would prohibit lawmakers from exercising their veto authority.
“There’s no time limit in the override provision of when the Legislature has to do it by, and there’s no specification it has to do it during a regular session or a special session called by the Governor,” Bastress said.
Morrisey agrees, although he urges prudence. “We conclude that the better view is that a special session can override a Governor’s post-adjournment veto,” Morrisey wrote in a letter to legislative leaders. “But we also note that there are reasons for caution. We have found no court case deciding the authority of a Legislature-initiated special session to override such a veto.”
In short, and in layman’s terms, if the state Constitution does not specifically prohibit the Legislature from taking an action, then lawmakers can give it a try.
The next issue is whether lawmakers will take the necessary steps to return to session. Tomblin is expected to call a special session soon to address budget issues, but there’s no way he would put a bill he vetoed on the call. That leaves it up to lawmakers to exercise their constitutional authority to force the Governor’s hand.
Article 6, section 19 of the state Constitution requires the Governor to call a special session “on application in writing of three fifths of the members elected to each house.” That’s 60 members of the House and 21 Senators.
Republicans hold 47 of the 100 House seats, so they would need at least 13 pro-life Democrats to join them in support of a special session. On the Senate side, the 11 Republicans would need the help of ten Democrats.
There are plenty of pro-life Democrats who supported the bill—it passed the House 83-15 and the Senate 29-5—but it’s unclear whether enough Democrats would be willing to buck their Governor by taking this historic step.
West Virginians for Life, the lead organization supporting the fetal pain bill, has already begun its effort to get lawmakers to sign on to the petitions.