CHARLESTON, W.Va. — When West Virginia residents vote on what the state Constitution says about abortion, they’ll get their chance to weigh in on an issue that has been percolating for the past 25 years.
In 1993, the state Supreme Court interpreted the state Constitution to say medically-necessary abortions could not be denied to the poor, and that meant state Medicaid funds would have to pay.
The ruling invalidated a state law passed earlier in the year.
“Since 1993, every year I come back and the people of Marion County are pretty pro-life, a pretty conservative group,” said Senate Minority Leader Roman Prezioso, a Democrat who served in the House of Delegates then.
“They tell me they don’t want their money going to pay taxpayer dollars for abortions. I’ve heard that every year I come back to the Legislature. I’ve heard it time and time again.”
Amendment One on state ballots Nov. 6 provides a chance to have a say-so.
The wording the citizens are voting on is spare.
This language would be added to the state Constitution: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
The repercussions could be significant.
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 wrote that the case was not about overriding moral arguments concerning abortion but instead was focused on the rights of the poor.
Workman wrote, “The constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but instead concerns the protection of either procreative choice from discriminatory governmental treatment.”
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 impinge 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.”
Delegate Barbara Fleischauer, who was then a private attorney, got involved in the case when she filed an amicus brief.
“To me, the wonderful part about Panepinto is it says women have more rights under West Virginia law to personal autonomy than they do under federal law,” Fleischauer, D-Monongalia, said last week.
“To me, that is being overturned as well.”
Fleischauer said she still believes the government is overstepping its bounds when it removes public funding for poor women when those who are better off have the option of ending pregnancy.
“It’s a moral decision,” she said. “It seems to me there are really strong moral issues in both sides, where the government doesn’t belong.
“It’s a very private decision whether you want to have a child or whether you should be forced to have a child if you can’t afford the procedure.”
Taxpayer-funded abortion heated up again as an issue when it arose, somewhat casually, during a legislative interim meeting.
This was during a December, 2017, meeting of the Joint Government and Finance Committee, which includes legislative leadership of both houses and both parties.
The meetings of that committee represent a sampler of brief updates by representatives of state agencies.
In this instance, lawmakers were hearing from Cynthia Beane, commissioner for the West Virginia Bureau for Medical Services.
Delegate Carol Miller, R-Cabell, was recognized to ask a question.
“Cindy, I’m kind of concerned,” began Miller, who is now running for Congress.
“I see down here, pregnancy terminations and there has been no money budgeted for that at all. And, it says that the actual current month of 9-30-2017 there were $15,476.00 and, then it says… year to date… $83,610.00 spent.”
Beane began by clarifying that West Virginia can’t use federal funding for abortions, then added that she would have to get more information.
That question kicked off a discussion that rippled through several of the next monthly meetings. Legislators wanted to know more about how many abortions were being paid by the state and how much they cost.
By the time the committee next met this past January, DHHR had put together a chart.
The chart showed that in 2017, West Virginia had paid for 1,560 abortions at a cost of $326,103. The prior year, the state paid for 1,217 abortions at a cost of $396,424.
The number of abortions was up significantly those two years from prior years.
There had been 763 in 2015, 544 in 2014, 502 in 2013, 517 in 2012, 630 in 2011, 678 in 2010 and 677 in 2009.
At the next meeting, Beane clarified the aspect of Miller’s question about zero funding. Because the state can’t use federal funding for abortions, she said, that number wasn’t included and left a blank in the report.
But that clarification didn’t stop the broader questions by lawmakers.
Delegate Daryl Cowles, R-Morgan, wondered if the state’s decision to expand Medicaid eligibility under the Affordable Care Act had increased those eligible for state-funded abortion.
“I don’t know, without going back and looking at those data,” Beane responded. “I mean historically, I can tell you that since I have been at Medicaid, we have spent historically around $300,000 on pregnancy terminations a year. I would have to go back to see if there was a fluctuation.”
House Minority Leader Tim Miley, D-Harrison, had a question of his own. He wanted to remind his fellow lawmakers — and himself — about one of the limitations already in effect.
Miley: “Ms. Beane, my recollection of the Panepento decision is that it made reference to medically necessary abortions or pregnancy terminations, correct?”
Beane: “I would have to go back and look at the decision, but we only pay for medically necessary.”
Miley: “Not elective?”
The conversations that took place in those meetings created momentum, said Prezioso, who was at the table with the rest of the legislative leaders. The increasing numbers also created urgency.
“It got people fired up,” Prezioso said. “The right to life people along with the fiscal conservative people was an unholy alliance – or holy alliance.”
When the legislative session began, the ball was rolling.
“They just always came up against the Panepinto decision, so in the end the decision was made to just confront it directly,” said Wanda Franz, president of West Virginians for Life.
Franz was president of that organization in 1993 when the Legislature passed the law specifying Medicaid dollars should not pay for abortions. After 20 years as national president of Right to Life, she is president again at the state level.
“I think it’s pretty clear the Legislature wanted very much to correct the problem because they’re hearing from their constituents they don’t want to pay for elective abortions.”
The West Virginia Senate fashioned a bill similar to one that passed in Tennessee in 2014. There were more stipulations to the Tennessee amendment. It said:
“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 or 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.”
The West Virginia resolution at first had similar language about rape, incest or saving the life of the mother. But a substitute resolution that popped into the Senate Judiciary Committee cut those provisions.
“Time and time again, the Legislature was presented with the opportunity to put those protections in place,” said Margaret Chapman Pomponio, executive director of West Virginia Free.
“There’s nothing that should have stopped them from doing that.”
Senator Corey Palumbo, D-Kanawha, offered a floor amendment intended to add back in the provisions.
“People have strong feelings on the topic of abortion, but most people I think tend to agree that’s a right that should be allowed for people in cases of rape, incest or the life of the mother,” Palumbo said.
“I thought that was important to make clear in this amendment, but not many other people did.”
There was a companion bill introduced in the House, one that paralleled the law that was nullified by Panepinto.
The bill, sponsored by Delegate Kayla Kessinger, would have specified Medicaid should not pay for abortions except if the fetus is no longer viable, if the mother’s life is in danger or in instances of rape or incest.
That bill was pulled in favor of trying to first pass the constitutional amendment.
Kessinger said she intends to introduce the bill again if Amendment One passes and if she, herself, is re-elected.
“If Amendment one passes, then it is my full intention to introduce legislation that would strictly prohibit taxpayer funding of elective abortions,” said Kessinger, R-Fayette.
Abortion policy represents the kind of serious decisions citizens expect their lawmakers to make, said Senate President Mitch Carmichael, R-Jackson.
“If we want to continue to have taxpayer funding of abortion, we can continue to do that,” Carmichael said on MetroNews’s “Talkline.”
“It would be a legislative decision. You can support for a legislative candidate who favors that, or not.”
Carmichael acknowledged the first decision citizens will make is on Amendment One.
“It puts the power in the people of West Virginia to decide who will make the laws as it relates to the public funding of abortion,” Carmichael said.
— MetroNews (@WVMetroNews) October 19, 2018
Both sides of the issue have been making their case to the public.
Pomponio of West Virginia Free contends Amendment One will result in the government taking away an option from poor women that is available to others.
“This is the first time in West Virginia history we would be amending the Constitution to take rights away from people,” she said.
“People really don’t want the government in charge of these decisions. We have polled on this. It really comes down to how you frame the question. If you ask voters ‘Are you pro life?” they’re going to say yes. But if you say ‘Should government take away a woman’s right to make private medical decisions?’ they’re going to say no.”
Removing the state Constitution’s safeguards means placing too much trust in elected leaders, Pomponio said.
Language stating the state Constitution has nothing to say about abortion could result in lawmakers chipping away and chipping away at current practices, she said.
“They are asking voters to take a huge leap of faith by saying trust politicians,” she said.
“The fact of the matter is, we don’t even know who is going to be in the Legislature next session. We cannot trust politicians to put these protections into place.”
The executive director of West Virginia ACLU, Joseph Cohen, echoed those concerns last week during an appearance on MetroNews’ “Talkline.”
“People are voting on a change to our fundamental governing document,” Cohen said.
“On Nov. 6, people will be voting to amend our Constitution and give the government not just over funding of abortion, but it would remove any restrictions on the government whatsoever.”
Joseph Cohen of the West Virginia ACLU joins @HoppyKercheval to discuss his opposition to Amendment One, which says taxpayer dollars do not have to be used to pay for abortion. WATCH: https://t.co/wkudfIAoe1 pic.twitter.com/LWZ3lBUfzu
— MetroNews (@WVMetroNews) October 18, 2018
What is clear is the taxpayer would be removed from the equation, said Mary Anne Buchanan, communications director for West Virginians for Life.
“We look at it as a taxpayer’s right thing,” Buchanan said. “The taxpayer doesn’t want to have to pay for an abortion. That woman would have to find a way to pay for it.”
That West Virginians have the opportunity to shape what the constitution says about abortion is momentous, Buchanan said.
“This is historic,” she said. “Never before in our state have the voters had the opportunity to vote on anything of this magnitude related to abortion. It may never happen again.”
Prezioso, who is Catholic, comes from a tradition of West Virginia Democrats who have deeper reservations about abortion than is expressed by their party at the national level.
“I resent any political party trying to tell me how to vote on this stuff,” he said. “Do you know how many people you alienate over that kind of thing? Until they can prove to me the exact time that life begins…”
Prezioso agrees his constituents have waited a long time to settle the issue of whether taxpayers should pay to end the pregnancies of poor women.
He said the votes of West Virginia’s citizens should be more revealing and more meaningful than a 3-2 decision of the state Supreme Court.
“What more precious right do you have than the right to vote? On an issue like that that’s so close, I think that’s why people should have the right to vote.
“Now I can come home and say the people of this state voted one way or another. That’s it. I don’t want to hear it again. Let the people vote.”