Democratic leaders of the West Virginia Legislature want a statewide vote on abortion. They have called on Governor Justice and Republican lawmakers to “reconvene and place upon the agenda a resolution to let people vote on a constitutional amendment for reproductive freedom.”
“The Legislature had its chance to clarify the laws and failed,” said Senate Minority Leader Stephen Baldwin (D, Greenbrier) in a release from the state Democratic Party. “The (special) session was a slow-motion train wreck that spectacularly went off the rails. Compassion and common sense are in short supply at the Capitol right now, so let’s put it before the people to decide.”
As it stands now, there is an old law on the books that outlaws all abortions except to save the life of the mother and penalizes anyone performing an abortion with up to ten years in prison. Kanawha County Circuit Court Judge Tera Salango issued an injunction last month blocking the law from being enforced, and that order is now on appeal to the state Supreme Court.
Baldwin is correct that the recent special session was an exercise in futility. Governor Justice called the session to address tax cuts. Abortion was added at the last minute and, even with supermajorities in the House and Senate, Republicans could not agree on a bill.
However, there are several problems with this Democratic challenge:
First, West Virginia has already had a statewide vote on abortion. In the November 2018 election, voters approved (52% to 48%) an amendment that makes the state Constitution neutral on abortion. The amendment read, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
Second, West Virginia’s form of government is just like the United States’ government—a republic (or a representative democracy) not a pure democracy. In a pure democracy, voters would decide the laws. In a republic, the people’s representatives are empowered to make those decisions.
Third, as a republic, legislators should not abdicate their responsibilities. Democratic House Minority Leader Doug Skaff pointed out that in the past “the legislature has approved ballot measures dealing with gambling, Sunday hunting and taxation. Why should the deeply personal issue of abortion be any different?”
But lawmakers should have made the final decisions on gambling, Sunday hunting and taxation. That is what they are elected to do; make tough decisions. Pushing votes on controversial issues to the ballot simply lets lawmakers off the hook.
The Republicans’ failure during the special session and the statewide vote in Kansas not to remove abortion rights from that state’s constitution have created an opening for West Virginia Democrats and the pro-choice forces in West Virginia. The pitch of “let the people decide” is a strong play that will resonate with many.
However, it also shifts the playing field away from where it belongs, in the hands of the people’s representatives who are obligated to act in ways they believe to be in the best interests of their constituents and state.
And the people are empowered to vote those same representatives out if they do not like their decision.