CHARLESTON, W.Va. — Time will tell the effects of an amendment to make the West Virginia Constitution neutral on abortion, but the first will be to eliminate state Medicaid funding to terminate pregnancies.
“Today, abortion is not banned in the state of West Virginia,” said Delegate Kayla Kessinger, R-Fayette, a lead advocate for the amendment in the state Legislature.
“All amendment one did yesterday was prohibit taxpayer-funded abortions.”
The amendment says this: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
Amendment One passed by 19,803 votes. That meant 52 percent of voters were in favor while 48 percent were against.
The first part of the language is what concerned opponents the most. Over the long haul, they contend, lawmakers will have more power to restrict pregnancy terminations.
“Politicians have proven tonight that they will stop at nothing to eliminate abortion access,” stated Julie Warden, part of a coalition of groups that campaigned against the amendment.
“The people of West Virginia did not vote to ban abortion today. While this is a sad day, we will not give up. The stakes are higher than ever and we refuse to let politicians further strip West Virginians of their right to safe, affordable abortion care.”
Amendment One’s most immediate effect would be to overturn Women’s Health Center of West Virginia Inc. v Panepinto of 1993.
The Panepinto part of the case name is from Ruth Ann Panepinto, who was then Secretary of the West Virginia Department of Health and Human Resources.
She was the state official in charge of enforcing a law passed by the Legislature during a special session the prior May.
Senate Bill 2 was a Medicaid tax reform bill. That bill included the provisions of West Virginia Code 9-2-11, which restricted the use of Medicaid dollars for abortions except in cases of medical necessity, rape or incest.
That piece of code said, “The Legislature intends that the state’s Medicaid program not provide coverage for abortion on demand and that abortion services be provided only as expressly provided for in this section.”
Women’s Health Center of West Virginia and West Virginia Free filed suit in Kanawha Circuit Court, challenging the new law’s constitutionality. Judge John Hey ruled against them that August.
The case was then appealed to the state Supreme Court, which ruled on a 3-2 split. Justice Margaret Workman, who still serves on the court, wrote the majority opinion.
Workman’s ruling noted that state government undertakes funding of medical care for the poor, including funding for childbirth. She wrote that provisions of the new state law impinged on the health and safety of poor women.
“Given that the term safety, by definition, conveys protection from harm, it stands to reason that the denial of funding for abortions that are determined to be medically necessary both can and most likely will affect the health and safety of indigent women in this state,” Workman wrote.
“To deny this conclusion requires that we similarly deny the reality of being poor.”
Although the ruling nullified West Virginia Code 9-2-11, the language was never removed from state law.
The law still on the books does include protections for instances where the mother’s life is endangered, if the baby has severe defects or is unlikely to live or if there has been rape or incest.
“I don’t see us changing anything that would prevent a poor woman from receiving an abortion in case of rape, incest or risk to the woman’s health,” said Senate President Mitch Carmichael, R-Jackson.
It wasn’t immediately clear the day after Election Day whether DHHR will need additional guidance to change its practices.
“In the next few weeks, there will be conversations to determine how the practical aspects of this are going to move forward,” Kessinger said.
As a practical matter, she said, that will be made clear through insurance claims.
“If a woman goes in today and she has a procedure, the doctor will bill the insurance and Medicaid will look at the procedure determine whether or not the abortion was performed with one of the three exceptions or whether it was an elective abortion,” Kessinger said.
“If it was an elective abortion, Medicaid would then deny the claim to pay for the procedure.”
Kessinger said she is in favor of maintaining the exceptions for when the mother’s life is at risk, in cases of fetal demise or instances of rape or incest.
She acknowledged the Legislature may propose additional changes to state law but suggested the amendment would not be used to outlaw abortion in West Virginia.
“I don’t foresee the banning of abortion even being considered,” Kessinger said. “Roe v Wade is the law of the land.”