Amendment would remove abortion right from WV Constitution

CHARLESTON, W.Va. — On Pro-Life Day at the Capitol, the Senate Judiciary Committee passed a resolution that would amend the state Constitution to say the Legislature has authority over abortion policies in the state.

The measure would effectively remove the concept of a right to abortion from the state Constitution. It still has a long way to go to become law.

It would need to pass the full Senate by a two-thirds majority vote, pass the House by a two-thirds majority vote and then pass as a constitutional amendment on citizens’ ballots next November.

The new section to be added to the state Constitution would say:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and State Senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

There was very little discussion of the bill in Senate Judiciary. The measure passed on a voice vote. If any nays were heard, they were uttered softly.

Senator Robert Karnes, R-Upshur, asked committee counsel about the constitutional muster of a similar amendment in Tennessee.

That state’s 2014 amendment also removed the right to abortion from the state constitution. It, too, said “Nothing in this Constitution secures or protects a right to abortion.” In fact, the entire phrasing of the West Virginia resolution is the exactly same as Tennessee’s amendment.

After three years of legal challenge — focused more on Tennessee’s vote-counting methods than on abortion law — a federal appeals court earlier this month upheld the amendment.

In an interview following Monday afternoon’s Judiciary meeting, Karnes acknowledged the language of West Virginia’s proposed amendment is almost identical to Tennessee’s.

“There’s been no successful challenges whatsoever to the notion that it is the Legislature’s prerogative in the state of Tennessee to control abortion to whatever degree the Legislature wants to — under, obviously, the federal judicial umbrella that has made significant decisions related to abortion,” Karnes said.

“So what this would do for West Virginia would be much the same.”

Over the past few months, conservative legislators have been scrutinizing Medicaid funding of abortions in West Virginia. The number of state-funded medical necessary abortions has more than tripled in the past five years.

West Virginia is one of 17 states where taxpayers pay for abortions for poor women.  The policy dates back to 1993 in Women’s Health Center of WV, et al. v. Panepinto, et al. before the state Supreme Court.

Justice Margaret Workman, who remains on the court, 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.

The House of Delegates has been considering legislation that would change the terms of Medicaid-funded abortion to instances where the life of the mother is at risk, rather than instances of medical necessity.

Karnes said the resolution moving through the Senate would ensure such changes pass constitutional muster — by changing the Constitution to say so.

“This would allow the Legislature to essentially override that decision without any ambiguity,” Karnes said. “This will make it absolutely clear that it’s constitutional for those things to pass.”

Discussions of abortion policy dominated Monday at the Legislature. The day began with a public hearing in the House of Delegates chamber about the bill that would change the conditions under which Medicaid dollars could pay for abortions.

Pro-choice advocates dominated the hearing in terms of the number of people speaking. They said the bill discriminates against poor women. They also emphasized that abortions are a matter of healthcare.

Many of those who spoke this morning learned of the Senate Judiciary agenda and stuck around for it. As the resolution was passed without dispute, they cleared the room and walked out into the hallway.

“Today’s been quite a rollercoaster for women’s health advocates,” said Margaret Chapman Pomponio, executive director of West Virginia Free.

“We were lambasted by this constitutional amendment that popped up on the Senate Judiciary Committee, which is incredibly severe.”

Chapman Pomponio said the resolution goes way too far.

“I have to say, as an advocate, that has her hand on the pulse of what West Virginians want — this is not it,” she said. “We’re deeply troubled that there are so many politicians here who just want to play politics with women’s health.

“You talk to most West Virginians they do not want abortion to be outright illegal and banned in West Virginia’s Constitution.”

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