Pro-life lawmakers have started their push this session to pass a state law prohibiting abortions after 20 weeks. The Pain-Capable Unborn Child Protection Act (HB 2568) argues there is “a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.”
Does a baby, in fact, feel pain at 20 weeks? The medical evidence is mixed. Those for and against a fetal pain law have stacked up evidence in support of their positions. However, the politics of the fetal pain bill in West Virginia are easier to sort out.
Last year, the Legislature approved a fetal pain bill, with support that was overwhelming and bi-partisan. The Senate passed the bill 29-5 while the House approved it 83-15 with two absent. Those votes came under Democratic control, so it’s highly likely that with Republican majorities both chambers would approve the ban after 20 weeks.
The key player is Gov. Tomblin. He has always been pro-life, though he ran afoul of West Virginians for Life last year when he vetoed the pain-capable bill.
The governor questioned the legal soundness of the bill in his veto message. “I am advised, by not only attorneys from the Legislature but through my own legal team, that this bill is unconstitutional as shown by actions of the Supreme Court of the United States.”
Tomblin added the bill “is also problematic because it unduly restricts the physician-patient relationship.”
Some of the behind-the-scenes discussions at the Capitol focus on whether the language in this year’s bill can be changed enough to give Tomblin a higher comfort level so he could sign it. That won’t be easy. The pro-life organizations won’t settle for a bill they consider watered down. For example, extending 20 weeks to 24 weeks is a non-starter. And Tomblin doesn’t want to sign a bill that will trigger a potentially-costly legal fight.
Lawmakers still have an option if the governor vetoes the bill. As long as the Legislature is still in session, they can override the veto with a simple majority in both houses.
Some lawmakers wanted to override the veto of the bill last year, but there was a question whether that was legal because the veto came after the Legislature had adjourned.
The medical community will have to sort out the ability of a 20-week-old baby in the womb to feel pain, but the politics of HB 2568 will come down to how the bill is ultimately worded, the votes and the timing of passage.