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House Committee Advances Near-Total Abortion Ban for West Virginia

photo by: Photo courtesy of WV Legislative Photography

Del. Lisa Zukoff, D-Marshall, seen here during the 2022 regular legislative session, voiced her vehement opposition Monday against an abortion bill that would not include exceptions for rape or incest.

CHARLESTON – The start Monday of a special session of the West Virginia Legislature to consider a personal income tax cut proposal from Gov. Jim Justice was quickly overshadowed by the addition of a new comprehensive abortion law.

Justice issued an amendment Monday morning to the proclamation he issued last Wednesday calling the Legislature into special session to consider his personal income tax cut proposal. That amendment came just 30 minutes after the Legislature gaveled in to consider a cut to the state’s personal income tax rates.

The amended special session proclamation called for the Legislature to clarify West Virginia’s abortion laws in the wake of a U.S. Supreme Court decision last month in Dobbs v. Jackson Women’s Health Organization that eliminated Roe. V. Wade and Planned Parenthood of Southeastern Pa. v. Casey that granted and upheld a women’s right to an abortion.

Justice asked for a bill that would “ensure a coherent, comprehensive framework governing abortions and attendant family services and support to expecting mothers to provide the citizens of this State more certainty in the application of such laws,” according to the amended proclamation.

“From the moment the Supreme Court announced their decision in Dobbs, I said that I would not hesitate to call a Special Session once I heard from our Legislative leaders that they had done their due diligence and were ready to act,” Justice said in a statement. “As I have said many times, I very proudly stand for life and I believe that every human life is a miracle worth protecting.”

photo by: Photo by WV Legislative Photography

Del. George Miller, R-Morgan, said Monday he would vote for a bill severely limiting abortions in West Virginia, even though his granddaughter disagrees with his position.

The bill that originated out of the House Health and Human Resources Committee on Monday afternoon would ban all abortions beginning at fertilization except for medical emergencies, a non-medically viable fetus, and in the instance of a pregnancy when a fetus develops outside the uterus. The committee recommended the bill for passage in a 16-6 vote, sending the bill to the House Judiciary Committee.

The bill would not allow for abortions in the instance of a rape or incest, though an earlier draft did include exceptions for rape and incest as long as the abortion occurs before 20 weeks of gestation. An attempt by Democratic members of the committee to amend abortion exceptions for rape and incest back into the bill failed.

“These women are forced to have sex and then impregnated and are going to be forced to give birth,” said Del. Lisa Zukoff, D-Marshall. “What are we turning into? I’ll be voting no. I just keep thinking about we always talk about we want West Virginia to be a where families can live, work, and raise a family. I guess we can now add live, work, raise a family, and force your daughter or your wife to give birth if she’s raped.”

Del. George Miller, R-Morgan, said his own grandchildren did not support his position on abortion and supported the same access to abortion as his Democratic colleague on the committee, but he felt it was more important to stand up for life by voting no on the rape/incest exception amendment.

“My granddaughter feels the same way you do,” Miller said, speaking to the minority members of the committee. “She just gave birth to my great-granddaughter a year ago. When the Supreme Court made their decision, she got on Facebook. She says ‘my choice, my body.’ And I voted no, because life means that much to me. I may lose her. I may lose them both, but life means that much to me. And that’s why I did it.”

The bill makes clear that certain procedures are not considered an abortion. These include miscarriages, stillbirths, the use of existing established cell lines derived from aborted human embryos or fetus, medical treatments that result in the accidental death or injury to a fetus, in vitro fertilization, or human fetal tissue research. It also does not prevent the prescription, sale, transfer, or use of contraceptives.

The bill also addresses the issue of pregnancy in underage children. It requires that any licensed medical professional may not perform an abortion on an unemancipated minor until a parent or guardian is informed, kicking off a 48-hour waiting period. The child can request a waiver of having their parent or guardian notified and ruled on by a circuit court judge no later than the day after receiving the request for waiver.

Lawmakers and Justice have been considering a special session in the wake of the Dobbs decision after Attorney General Patrick Morrisey determined an old law dating back to 1849 and carried over from Virginia’s criminal statutes after the formation of West Virginia is now back in effect.

State Code 61-2-8 makes it a felony for any person to cause an abortion. The law was ruled unconstitutional by a federal court in the 1970s after the U.S. Supreme Court upheld a woman’s right to an abortion with the Roe decision, but it was never stricken from West Virginia’s criminal code. The new bill makes it clear that no woman can be prosecuted for having an abortion performed.

The original section of 61-2-8 that makes it a felony to perform an abortion or attempt to induce an abortion remains place, with those found guilty facing between three and 10 years in prison. A licensed medical professional in violation of the code can also lose their medical license. An attempt to amend out criminal penalties for abortion providers also failed in committee.

Kanawha County Circuit Court Judge Tera Salango granted a preliminary injunction last week on behalf of the Women’s Health Center of West Virginia – the state’s only abortion clinic — blocking enforcement of State Code 61-2-8. The injunction allows the Women’s Health Center to begin again to provide abortion services. The Attorney General’s Office filed a motion with the West Virginia Supreme Court of Appeals to stay the lower court decision and for an expedited hearing.

State Democratic Party leaders released a statement Monday accusing Justice and Republican lawmakers for making a deal to get the abortion bill on the special session agenda in exchange for lawmakers supporting the governor’s personal income tax cut plan.

“Apparently Gov. Justice couldn’t get his backroom tax cut deal done without a deal guaranteeing a return to backroom abortions,” said Del. Danielle Walker, D-Monongalia, vice chair of the West Virginia Democratic Party. “I fear this will be a huge step backward for reproductive health care for West Virginians.”

“It looks like Governor Justice is using abortion and reproductive health care as a bargaining chip just to pass his version of a tax cut,” added Del. Mike Pushkin, D-Kanawha, chair of the state party. “West Virginians deserve better than this.”

Reproductive rights groups were also not happy with the addition of an abortion bill at the last minute to the special session call, with bill language not being released to the public until later Monday afternoon.

“Any law that strips people of their reproductive freedom does not modernize our state — it drags us backward,” said Alisa Clements, director of public affairs for Planned Parenthood South Atlantic. “No matter your personal view on abortion, we should all agree that the decision of if, when, and how to become a parent should be made by the patient in consultation with their loved ones, their medical provider, and their faith. The governor and state lawmakers have no business criminalizing health care.”

On the other side of the building, the Senate Finance Committee passed an originating bill dealing with family planning. The bill would require private and public employee health insurance to provide coverage for tubal ligation and vasectomies, allow adoptive families to be eligible for early childhood intervention programs through the Department of Health and Human Resources, makes changes to the state’s adoptive tax credit, increases access to hormonal contraceptives.

The originating bill also removes a current prohibition on licensed pharmacists from dispensing self-administered contraceptives to anyone under the age of 18. The bill would not go into effect until July 1, 2023, when the next fiscal year begins.

“We all are committed through this process to making sure that we support all life in this process while we are under this call,” said Senate Finance Committee Chairman Eric Tarr, R-Putnam.

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