Today is Pro-Life Day at the State Capitol.  House and Senate leaders will be presented with petitions whose signatories support the effort to eliminate Medicaid funding for abortions for poor women except in extreme circumstances.

Legislation to accomplish that is already moving. The House Health and Human Resources Committee has already passed and sent to the Judiciary Committee HB 4012. The bill prevents Medicaid from paying for abortions unless that procedure is necessary to save the life of the mother.  A similar bill, SB 417, is pending in the Senate.

West Virginia is one of only 17 states that requires taxpayers to pay for abortions for poor women.  The policy dates back to State Supreme Court’s 3-2 decision in 1993 in Women’s Health Center of WV, et al. v. Panepinto, et al.

Justice Margaret Workman (who remains on the court today) wrote for the majority that the state, acting “for the common benefit, protection and security of the people,” had an obligation to provide medical care for the poor “in a neutral manner so as to not infringe upon the constitutional rights of our citizens.”  Part of that medical care was abortion.

However, Workman’s conclusion faces significant legal challenges.

Justice Tom McHugh—one of two dissenting Justices, along with William Brotherton—wrote that while the Roe v. Wade decision established a constitution right to an abortion and a protection from burdensome interference, it did not require taxpayers to pay for that right.

“It implies no limitation on authority of a State to make a value judgment facing childbirth over abortion, and to implement that judgment by the allocation of public funds,” he wrote.  In other words, whether or not the state pays for abortions for women is a public policy decision.

McHugh’s view is consistent with the Hyde Amendment, the federal prohibition that has been in place since 1977 that prevents the use of federal funds for abortions except in cases where the mother’s life is in danger or in cases of rape or incest.

In 1980, the U.S. Supreme Court in Harris v. McRae upheld the Hyde Amendment.  The Court ruled that, “Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.”

Women in West Virginia, like women everywhere, have a protected right to choose an abortion. However, that right does not carry with it any obligation for the state (taxpayers) to pay for them.  Whether West Virginia wants to continue the practice is a public policy decision.

Based on the sentiment of lawmakers, which is a reflection of the views of their constituents, it’s a policy that will likely be reversed.

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