CHARLESTON, W.Va. — A proposed amendment that would remove presumed abortion rights from the state Constitution now goes to the House of Delegates, where it would require a two-thirds majority vote to be on ballots for state voters to decide 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 votes on amendment stage and passage in the Senate brought abortion rights protesters to the Capitol.
The process in the House of Delegates also seems likely to be contentious.
Part of the debate so far has been over whether it’s necessary to include some language providing constitutional protections in instances of rape, incest or if the life of the mother is endangered.
The introduced version of the bill had another section dealing with particular circumstances. It said:
“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.”
That language was removed as the bill moved through Senate Judiciary, though. On the floor, Senator Corey Palumbo, D-Kanawha, moved to have the language amended back in, but his motion was defeated.
Republicans said state law already includes those protections so to specify them in the state Constitution would be unnecessary.
Others disagree.
“I am genuinely concerned about the health and safety of West Virginia women and girls by what this amendment could do,” said Margaret Chapman Pomponio, executive director of West Virginia Free.
“By the Senate passing a measure that says there’s no constitutional right or protection to abortion seems to be a clear indication that the flood gates are open now to continue to pass restriction after restriction after restriction to the point where perhaps Roe v. Wade isn’t quite relevant any more.”
She added, “If we impede access to the point that this right is unattainable, what is the right then? It’s a right in name only.”
West Virginians for Life has a different view. That organization says the proposed amendment would prevent public Medicaid funds from being used to pay for abortions.
A separate but related bill that’s already being considered in the House would allow Medicaid to be used to fund abortions only in cases where the mother’s life is at risk, rather than “when medically necessary.”
Those who support the bill are concerned that it could be ruled unconstitutional without the amendment.
But, those who support both measures say, neither would prevent abortions in West Virginia — just the public funding of abortions.
“A woman can still get an abortion in West Virginia for any reason,” Wanda Franz, president of West Virginians for Life, stated in a release distributed after the Senate vote on Friday..
“A woman has always been able to get an abortion to save her life, even before Roe vs. Wade in 1973. It is a lie to say that women will die because of SJR 12.”
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.
Part of that medical care was abortion.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.”
The amendment being considered in West Virginia’s Senate was inspired by one in Tennessee that recently survived a constitutional challenge over the way it was instituted.
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.
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.”
Franz of West Virginians for Life says the amendment debate that is moving to the House is all about public funding of abortion.
“If Panepinto is reversed, the law on which it was based would be reinstated,’ Franz stated. “The 1993 law allowed for abortion to save the life of the mother, in cases of rape and incest and for fetal deformity.”