CHARLESTON, W.Va. – West Virginia lawmakers passed up the chance Friday to become the first state to approve new legislation restricting access to abortions since the U.S. Supreme Court’s ruling last month removing its protected status as a constitutional right.
The Republican-dominated Senate adopted its version of a bill along with amendments, one of which removes criminal penalties for physicians who perform illegal abortions. Late Friday night the House of Delegates, which passed its bill Wednesday, refused to concur with the Senate amendments, instead asking for a conference committee to iron out differences among the bills.
Both chambers then adjourned until they are called back sometime next month.
Several GOP-led states had “trigger” abortion bans in place in advance of the court ruling, but West Virginia lawmakers are taking action because of legal uncertainty over whether a ban from the 1800s that was upended by the 1973 Roe v. Wade decision could be enforced now.
As in other states dominated by socially conservative lawmakers, there's not much question about whether abortion will be banned generally now that states have the power to do so — but whether the ban will apply to pregnancies caused by rape or incest.
In South Carolina, a ban without the exceptions has been introduced. In Arkansas, outgoing GOP Gov. Asa Hutchinson would prefer to add them to the ban that's already in effect, but he has balked at asking lawmakers to address the issue in a special session.
The high-profile example of a 10-year-old rape victim in Ohio, a state without an exception for rape in its abortion restrictions, who traveled to Indiana for an abortion has amplified the debate.
Tension over the question gripped the Indiana Senate in a session that began Thursday and finally wrapped up after midnight. A final vote there is expected Saturday on the bill, which includes exceptions for rape and incest.
The West Virginia bill, which some lawmakers have complained was not vetted by any Senate committees, would ban abortions except in case of rape or incest.
The Senate approved an amendment sponsored by a physician, Kanawha County Republican Tom Takubo, that removes criminal penalties of three to 10 years upon conviction for any medical provider who performs an abortion.
Takubo said the bill already would subject a physician to the difficult loss of their license for performing an illegal abortion. He also said West Virginia already has problems retaining medical professionals, and if the criminal penalties are retained it could have a chilling effect on the practice.
Another approved amendment offered by Greenbrier County Democrat Stephen Baldwin would allow a minor to report a rape to someone covered as a “mandated reporter,” such as a pastor or school counselor, who would be required to report the case to authorities. The House version requires law enforcement to be directly contacted.
The measure allows exemptions for victims of rape and incest up to 14 weeks of pregnancy. The bill also provides other exceptions for an ectopic pregnancy, a “nonmedically viable fetus” or a medical emergency that could kill or cause a substantial and irreversible injury.
A dozen of the 34 senators gave impassioned speeches before the 21-10 vote. Three senators were absent. Some who said they supported the bill also indicated they weren’t happy with it. Some Republicans wanted a blanket ban on abortion. Others wanted the criminal penalties for physicians restored.
The state's only abortion clinic initially stopped offering abortions after the latest ruling, but resumed this month as it mounted a court challenge on whether the old ban applied. On July 18, a Charleston judge barred the state from enforcing the ban, ruling it had been superseded by a slew of conflicting modern laws such as a ban on abortion after 20 weeks.
Republican Gov. Jim Justice called the special legislative session to consider an abortion ban. He didn’t indicate whether he would sign either bill, and the governor’s office didn’t immediately return an email Thursday requesting comment.
On Friday, people seated in the packed galleries above the Senate chamber shouted “shame on you” when the afternoon session went into recess almost as soon as it started.
When the debate finally began hours later, Democrats complained that they did not have a final version of the Senate’s bill prior to the start of Friday’s session that included a dozen amendments.
“This has been a slow-motion train wreck,” Senate Democratic leader Stephen Baldwin of Greenbrier County. "This bill would put doctors in jail for doing their job and for following their oath.”
In Indiana on Thursday, there was a nearly four-hour delay in a Senate session as lawmakers met privately to discuss the exceptions, which were ultimately left in over strong objections from some conservative lawmakers.
“Exceptions equal death for unborn innocent children,” said Sen. Mike Young, the Republican who filed an amendment that would only allow abortions to protect the life of the mother.
Eighteen Republicans ultimately joined 10 Democrats in voting to keep the rape and incest exceptions in the proposal. But the votes of many of the Republicans who voted for eliminating the exceptions will be needed for the bill to advance to the House. If not enough switch, it could keep abortion would remain legal in the state for now.
A final vote there is expected Saturday.
While legislative battles over abortion have begun, much of the fallout from the Supreme Court's decision has played out in the court system. In Louisiana, enforcement began of a near-total ban but was halted by a judge earlier this month. On Friday, a judge ruled enforcement could resume — though it was not immediately clear when.
For AP’s full coverage of the Supreme Court ruling on abortion, go to https://apnews.com/hub/abortion.
Associated Press writers Sara Cline in Baton Rouge, Louisiana; Geoff Mulvihill in Cherry Hill, New Jersey, and Arleigh Rodgers in Indianapolis contributed to this report. Rodgers is a corps members for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.