West Virginia House of Delegates leaders are moving quickly to pass a bill that would restrict abortion access, giving credence to concerns that this year will be a pivotal one for people seeking abortions — both in West Virginia and around the country.
On Thursday, during their first meeting of the regular legislative session, lawmakers on the House Health and Human Resources Committee sped through a prohibition on abortion after 15 weeks. This kind of ban is exactly what has been worrying abortion rights advocates in the state.
“2022 does have the potential to be the worst year for reproductive health and abortion access and the state of West Virginia since 1976 when we first opened our doors as the first abortion provider,” said Katie Quinonez, the executive director of the Women’s Health Center of West Virginia, the only clinic performing abortions in the state.
But beyond what state lawmakers might do in West Virginia, abortion rights advocates like Quinonez await a U.S. Supreme Court ruling this summer that could erode nearly 50 years of legal precedent established by Roe v. Wade; justices will decide whether to allow a similar 15-week abortion ban in Mississippi to stand. And another, separate case with the potential to change states’ ability to restrict abortion is making its way through the Texas court system.
To others, what’s happening in West Virginia and the nation feels invigorating. Delegate Kayla Kessinger, R-Fayette, thinks this is the year where abortion policy in West Virginia will see big changes after years of persistent, smaller legislation that chipped away at access or stigmatized the procedure.
“Many state legislators feel like we are confined by the Supreme Court’s decision from 1973 based on science from the ‘70s,” she said. This year, Kessinger says, could be the one where the Supreme Court could “untie” lawmakers’ hands and give them the power to make sweeping abortion policy at the state level.
One thing seems certain: abortion access won’t get easier in 2022. Even in recent years it’s become more difficult than it used to be for West Virginians to access this type of health care, and regardless of how the Mississippi and Texas cases are decided, abortion rights advocates fear it will get even more difficult after the legislative session and in the months that follow.
Current landscape
This fall, protesters were a near-constant presence at West Virginia’s only elective abortion clinic. They stood on the sidewalk near the Women’s Health Center on Charleston’s West Side, holding signs and praying. Across the street in a vacant lot, they erected an imposing white cross. Even though the protests have since died down, the cross is still there.
Quinonez says walking past protesters on the sidewalk is a hurdle to West Virginia women seeking health care — not only abortions, but other comprehensive services at the clinic like cancer screenings and Pap smears.
“We’ve unfortunately seen a number of patients become extremely upset and emotional because [anti-abortion rights protesters] are not actually there to try to help any of the patients who are entering our facility,” she said. “Their entire goal is to simply shame and harass patients who are coming in for health care at our clinic.”
And that’s not the only hurdle to accessing an abortion today in West Virginia.
One barrier is distance. The Women’s Health Center is in Charleston, so people might have to travel hours for an appointment. This is just one of the burdens for low-income women, especially if they have to take time off of work and pay for a hotel room near the clinic.
The second barrier is the Women’s Right to Know Act, a state law that’s been on the books since 2002 that requires a person receive counseling from the provider at least 24 hours before an abortion procedure.
The counseling includes information about the various stages of fetal development and the health risks from both abortion and giving birth, as well as information telling patients that the father would be required to financially support the child.
Quinonez characterizes the counseling as a “mandated, biased, state-prepared phone counseling script, that’s designed to try to persuade people to not have abortions.”
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Medication abortions — a procedure that requires a person take two pills within 48 hours of each other — are also available at the Women’s Health Center. But per a new state law enacted last year, doctors are required to inform patients that they can “stop” their medication abortion by not taking the second pill, and advise that it may be possible to “counteract” the effects of the first pill. The method to “stop” an abortion isn’t supported by research, and it’s based on taking a medication that isn’t approved by the U.S. Food and Drug Administration for the purpose of stopping abortions.
Just last year, the FDA permanently lifted a rule that required pregnant women to receive the first pill in person from a doctor; it can now be received via mail. For many states, this has expanded abortion access at a time when the COVID-19 pandemic has made it difficult to see a medical professional. But the policy change means little for women in West Virginia and 18 other states that ban telemedicine for medication abortions.
Then, there’s the cost. While a federal law prohibits any federal funding — including through Medicaid — to go towards an abortion except when the mother’s life is in danger or in the case of rape or incest, some states allow for their own Medicaid dollars to pay for the procedure.
But not in West Virginia: a constitutional amendment passed by voters in 2018 inserted language into the state’s constitution that public funds can’t be used for the procedure. Since then, Medicaid funding for abortions has been unavailable for pregnant women who are low-income, with the same exceptions included in federal law.
Quinonez said one in four women seeking an abortion at the clinic has to use charitable assistance to pay for the procedure. She says further restrictions could make abortion a possibility only for women who can afford to travel out of state, as many already do, and those restrictions would disproportionately affect low-income women and women of color.
How 2022 could change things
Across town from the Women’s Health Center, lawmakers have been working under the Capitol’s gilded dome to slowly chip away at West Virginians’ ability to get abortions. On the first day of the 2022 legislative session, a handful of unfinished bills concerning abortion were carried over from the previous session, and at least three new bills were introduced.
One of those bills is the ban on abortions after 15 weeks – a similar law passed in Mississippi is being considered by the U.S. Supreme Court right now. Both of the bans allow exemptions for medical emergencies and fetal abnormalities, but not sexual assault or incest. An amendment to include those two exemptions in the West Virginia bill was shot down in the House Health and Human Resources Committee, where House leaders placed it for consideration on the second day of the session.
Abortions are currently legal in West Virginia up to 20 weeks, though the Women’s Health Center only performs them up to 16 weeks gestation.
The committee met on Thursday afternoon in the House Chamber to debate the bill. But after hearing testimony from one person who had had an abortion, there was little debate. Democrats offered amendment after amendment, but all were quickly voted down. The bill passed the committee, but there will be a public hearing on it before it heads to the Judiciary Committee.
“I’m sorry we spent our first day of the committee on this subject,” Delegate Mike Pushkin, D-Kanawha, said.
Delegate Kessinger wasn’t on the committee, but watched from the floor.
“I have the utmost confidence that our 15-week bill is going to pass the committee and the entire House,” she said earlier in the day. “There’s only 11 spots on a bill for sponsorship, right? I would guarantee that if they were 50, there would be 50 sponsors. This is something that our party has made promises from before we ever took the majority in this state to protect life and we’re delivering.”
If the bill passes, it could be held up in court. But regardless of this bill’s trajectory, a lot will hinge on how the U.S. Supreme Court decides in a pending case from Mississippi. There, the state’s only abortion clinic is challenging the law that makes it illegal to get an abortion after 15 weeks. That limit is about two months shorter than the 24 week limit previously recognized by the Supreme Court. The court held oral arguments in the case last month, and West Virginia Attorney General Patrick Morrisey submitted a brief with 23 other states in support of Mississippi’s arguments.
Molly Riviera, communications director for Planned Parenthood South Atlantic, says Mississippi’s case could alter the landscape of abortion law in the country, whether the Supreme Court overturns Roe v. Wade entirely, or not.
“Advocates are expecting Supreme Court to at least gut Roe, which would give states the right to pass whatever law affecting abortion rights they see fit. We do expect West Virginia to be one of those states,” Riviera said.
Letting the state make the call has been the goal for years, according to Wanda Franz, president of West Virginians for Life. She says that anti-abortion groups have felt that Roe v. Wade was wrongly decided, and part of their political strategy has been to elect presidents who would appoint federal and Supreme Court justices who would rule on cases in such a way that would ultimately put abortion in the hands of states.
“We’re not asking that abortion be outlawed, but rather that abortion be returned to the legislative arena where the elected members of the legislature elected by the people of the state can rule according to what the people of the state believe should be done,” Franz said.
There are several possible ways that the Supreme Court’s decision in the Mississippi case could play out in West Virginia when it is issued later this year, according to Loree Stark, legal director at the American Civil Liberties Union’s West Virginia chapter. She says if the court does weaken the abortion access guaranteed from Roe v. Wade, the Legislature could pass laws that are designed to “regulate abortion out of existence.”
“If you chip away far enough, then you might be in a state where people have no access to abortion but it’s still technically a constutionally-protected right so long as Roe is in effect,” Stark said.
The worst case scenario, according to abortion-rights advocates, would be a complete overturning of the Roe decision. Some states have “trigger laws” in place that would immediately outlaw or further restrict abortion in the event that Roe is overturned. West Virginia doesn’t have a trigger law, but there is a law that criminalizes abortion on the state’s books that hasn’t been enforced since at least the Roe decision in 1973.
Stark says it’s unclear whether, and how quickly, doctors who perform abortions could be prosecuted in West Virginia if the Supreme Court were to overturn Roe. She says it’s possible the Legislature may move to clear up any ambiguities during this session.
“Even though West Virginia doesn’t have a trigger law we should be concerned that the legislature may be putting in plans to have [the pre-Roe ban] enforced immediately,” Stark said.
Sen. Patricia Rucker, R-Jefferson, said that to her knowledge, the Legislature has no plans in place for a trigger law. According to both her and Sen. Robert Karnes, R-Randolph, such a law wouldn’t be needed: If the Supreme Court overturns Roe v. Wade, the state’s current ban would be enforceable.
Rucker said she plans to introduce another type of abortion restriction this year: a bill that would ban abortions if Down syndrome or another disability is detected in the fetus.
A new type of restriction
The other case that observers of abortion policy are following is the law passed by the Texas Legislature in 2021, which set the cutoff for abortions when a heartbeat is detected. This is typically around six weeks, often before women even know they’re pregnant. Rather than criminal penalties, the law created an enforcement mechanism that allows private citizens to file civil lawsuits against people who facilitate or assist an abortion.
The law was quickly challenged when it went into effect last year and an emergency appeal was filed with the U.S. Supreme Court. The Supreme Court declined to halt the law while it moves through Texas courts, making obtaining an abortion in the state illegal for anyone who is over six weeks into their pregnancy.
Shortly after the Texas law went into effect in September, several West Virginia lawmakers expressed support for such a “heartbeat bill” in West Virginia.
Sen. Karnes and Delegate Joe Jeffries, R-Putnam, both expressed support in a Facebook post for a Texas-type abortion law. They said this week that they support further restrictions on abortion, but a bill inspired by Texas isn’t on their radar for this upcoming session. The other lawmakers who expressed support in the Facebook post — Sen. Randy Smith, R-Tucker; Delegate Bryan Ward, R-Hardy; Delegate Mark Dean, R-Mingo; Delegate Josh Holstein, R-Boone; Delegate Chris Phillips, R-Barbour; and Delegate Shannon Kimes, R-Wood — didn’t return a request for comment.
But the enforcement mechanism put in place by the Texas bill is another story. Cases inspired by this sort of citizen enforcement are already happening: California Gov. Gavin Newsom announced in December that he would seek to create a Texas-style law that would allow citizens to file civil lawsuits to enforce the state’s ban on assault weapons. This type of law is concerning to people who hold opposing opinions on abortion access.
“[The Texas ban] is about much more than just abortion. Everyone who cares about their constitutional rights should be concerned about a bill like this,” Quinonez said. “This kind of scheme or this model that they’re using could easily be used to ban free speech, marriage equality or any other right that you could think of and deputize private citizens to enforce the law by bringing costly lawsuits against anyone who they suspect of violating the ban.”
Karnes agrees.
“I actually share some of the concerns of the other side, even though I think they’re being cynical. I dont consider abortion to be a legitimate consitutional right. But it’s certainly a valid point that we don’t want people putting a bounty on people for exercising their rights,” he said. “I don’t think we’re going to do something like Texas, but maybe something like Mississippi.”
However the Supreme Court decision and the state Legislature go this year, patients seeking abortion in West Virginia will still have to contend with a long list of barriers placed between them and the procedure. And in Charleston, the state’s only abortion clinic will continue to face pressure right outside of its doors.
Though the vacant lot with the cross is clear of protesters for now, it probably won’t be for long. Late last fall, the anti-abortion group West Virginians for Life launched a fundraiser to purchase the lot that the group had previously been leasing. They reached their goal by the end of December.