CHARLESTON — When West Virginia residents vote next month 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 last 35 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.
“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.
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.
Overturn
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 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’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.
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.”
Legislative questions
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.
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.
By the time the committee next met last January, DHHR had put together a chart showing that in 2017, West Virginia 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.
There were 763 in 2015, 544 in 2014, 502 in 2013, 517 in 2012, 630 in 2011, 678 in 2010 and 677 in 2009.
Delegate Daryl Cowles, R-Morgan, wondered if the state’s decision to expand Medicaid eligibility under the Affordable Care Act 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, wanted to remind his fellow lawmakers about the issue at the heart of the Panepinto decision: That it made reference to medically necessary abortions or pregnancy terminations, not elective.
The conversations that took place in those meetings created momentum, said Prezioso, who was at the table with the rest of the leaders. The increasing numbers also created urgency.
Resolution
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. After 20 years away from the position, she is president again.
“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 passed in Tennessee in 2014. There were more stipulations to the Tennessee amendment, including language about abortions for “pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
“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.”
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 is re-elected.
Decisions
Both sides of the issue have been making their case to the public.
Pomponio 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.”
Removing the state Constitution’s safeguards means placing too much trust in elected leaders, Pomponio said.
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 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.”
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