Capito: State abortion laws may not be 'one and done'

Jul. 16—With abortion rights now in the hands of state legislators, whatever laws are passed may last only as long as the politics stay the same.

Sen. Shelley Moore Capito said during a virtual press briefing Wednesday the U.S. Supreme Court made the right decision in overturning Roe v. Wade and putting abortion rights decisions in the hands of states, but it is not going to be a "one and done" legislative matter.

"There will be an evolution of state laws and ebbs and flows, depending on who is in charge of the legislatures," she said of abortion laws states pass now that may be changed again down the road.

But Capito said it still should remain in the hands of the states without the federal government stepping in with any abortion protection measures that trump state laws.

"I don't see a role for the federal government here," she said.

That means states will become the arena for abortion politics.

Right now, West Virginia has a Republican super majority in both the House and Senate and the pro-life sentiment from Gov. Jim Justice and from legislators is that abortion rights will be tightly restricted, with few exceptions.

Attorney General Patrick Morrisey recently issued a legal opinion that laws from the 1800s still on the books in West Virginia basically banning almost all abortions and including felony charges for providers and possibly mothers are now enforceable with the demise of Roe. v. Wade.

But he suggested amendments to those laws to make sure they are in line with an exception in cases where the life of the mother is at risk and legally vetted to try to avoid future lawsuits, one of which has already been filed.

The ACLU and other organizations filed the suit in Kanawha County to try to prevent enforcement of those laws.

Justice, who has called those laws "archaic," wants to call a special session of the Legislature to address any changes, but has not yet announced a date, saying legislators are not ready with the details of what should be done.

State Sen. Chandler Swope, R-6h District, said legislators must make sure they get it right.

"Our Republican caucus is discussing it and doing legal research on current and possible legislation," he said. "We think it's an important issue and are working on it. It's probably better to do it well than to do it quickly. I'm sure the Governor knows better than I do when the Legislature as a whole will be ready to act. I'm happy to defer to his judgment."

Del. Marty Gearheart, R-Mercer County, said the laws do need to be "cleaned up" and any urgency to make those changes should be tempered with doing it right.

"The Governor probably wants to vet it (any proposed changes to the laws) through the House and Senate (leadership) before sending it to the Legislature," he said, adding that he has heard it is possible a special session could be called next month or the matter may not be taken up until the next legislative session in January 2023.

Although any changes in the law may not be "formed up yet," Gearhart said "there is not much question in a simplistic manner what is going to happen here" in terms of restrictive abortion laws.

The real debate, he said, will be any exceptions to abortion other than to save the life of the mother, which will be part of the law.

Gearhart does not favor any exceptions besides that, but others want to see an exception in cases of rape or incest. Some may want a short window of opportunity for any reason at the beginning of a pregnancy.

Possible criminal penalties will be discussed as well, he said, but those penalties will most likely not include any charges against the mother.

However, Gearheart agrees with Capito that any laws current legislators put on the books may change down the road.

"You have a conservative majority that is pro-life, but that could change, or it may not," he said.

He also said that life issues are not always along party lines, with some Democrats being more pro-life and some Republicans pro-choice.

While West Virginia may be heading for very restrictive abortion rights, Virginia may allow a woman broader rights, a window of opportunity for an abortion without restrictions.

Gov. Glenn Youngkin, a Republican, has proposed a 15-week ban, designed very much like the Mississippi law that the Supreme Court considered when overturning Roe v. Wade all together.

Under Youngkin's proposal, women have up to 15 weeks, rather than the 24 under Roe. v. Wade, to decide on whether to get an abortion, with few exceptions after that 15-week window.

However, not all Republicans are on board with his proposal.

State Sen. Travis Hackworth, R-Tazewell County, is working with other GOP legislators to craft a bill to basically ban all abortions with a few exceptions, much like what is being done in West Virginia.

Called the Protecting Virginia's' Children Act, the bill would protect life at conception.

"No society can be deemed civil when it murders and discards its babies because they are deemed inconvenient," Hackworth said. "I am proud to lead the efforts in the Virginia Senate to patron this important legislation that will protect life and ensure Virginia leads the way in providing a dignified and respected future for all Virginians — from conception to old age."

Across the country, abortion laws generally reflect political leanings, with blue states championing abortion rights and red states passing restrictions.

Virginia is considered a blue state but power is divided in Richmond, with the House controlled slightly by Republicans (52-48) but Democrats holding a small edge in the Senate (21-18).

Most see abortion rights as a front and center issue in all upcoming elections for state office.

Regardless of the political battles in states as a fallout from the Supreme Court decision, the three new justices appointed and confirmed during the Trump Administration and voting to overturn Roe v. Wade — Neil Gorsuch, Brent Cavanaugh and Amy Coney Barrrett — are all relatively young and will most likely sit on the court for decades.

That means it is unlikely another version of abortion rights will be revisited and approved by the Supreme Court.

The Women's Health Protection Act, which would have codified Roe and created a federal right to an abortion much like what was in place with Roe, passed the House but got no further.

Capito opposed the bill and it is not expected to advance.

But it is also possible more justices could be added to the High Court, tipping the scales politically, a move Sen. Elizabeth Warren, D-Mass., made last year when she co-sponsored the Judiciary Act of 2021 to expand the Supreme Court by four seats.

However, talk of any expansion has quieted since it would take 60 votes in the Senate and Pres. Joe Biden has indicated he does not favor an expansion of the court.

Capito also opposes adding more justices to "pack" the court to balance out any perceived political imbalance.

Although it may be unlikely to happen, Capito said she would favor a constitutional amendment to keep the status quo and require only nine members. The Constitution does not specify a particular number.

Last year, Sen. Ted Cruz introduced a joint resolution to that end but it never progressed.

"I would support that," she said of the resolution.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com