The women’s organization West Virginia Free gathered more than 50 supporters outside the state Senate Chambers to protest House Bill 4588, the pain capable unborn child protection act.
The bill was taken up in the Senate Health and Human Resources Committee and amended Tuesday, changing the felony charge for performing an abortion to a misdemeanor with a possible fine of up to $4,000.
The bill also permits abortions for women who may die or suffer irreversible damage to a bodily function as a result of the pregnancy and allows termination of a fetus who is deemed medically non-viable, or unable to survive on its own.
One of the lead sponsors of the House bill, Delegate Joe Ellington, is an obstetrician and said there is some confusion over the time limit in the bill. The House bill bans abortions 20 weeks from fertilization, which is often two weeks after a woman’s last menstrual cycle.
“Generally accepted in the medical community is that from 24 weeks from the last menstrual period is considered medical viability, so there’s only a two week difference from that,” he said.
When questioned by the chair if he had evidence that a fetus could feel pain at the 20 week mark, as supported by findings in the legislation, Ellington said he had not researched studies outside of what was contained in the bill.
Dr. Luis Bracero, a high risk OBGYN at the women and children’s hospital in Charleston spoke against the bill.
“I think that we need to let the decisions between patients and doctors, not be legislated by you guys. You need to respect patient doctor relationships and you should not be criminalizing physicians who do terminations of pregnancy. We have to have a little bit more empathy. You don’t know what the individual situation is. Everyone has their own story. It’s not one size fits all. They’re all different, they all have to be individualized and that’s what medicine is all about, individualization, and we have to respect that.”
Senate Judiciary Chair Senator Corey Palumbo said in his research on the issue, nearly 40 states have laws that prohibit abortions after 24 weeks or when a fetus is considered medically viable.
He said nine or 10 states have a law similar to what West Virginia is now considering and in at least three of those states the law has been overturned by the courts.
“Its fair to say that all the court decision that have been rendered at this point indicate that a 20 week ban in unconstitutional, but a ban at 24 weeks or after viability would be constitutional,” he said.
The Senator proposed an amendment changing the ban from a 20 week to 24 week ban, bringing West Virginia in line with a majority of the country.
The amendment, however, failed and Palumbo was the only committee member voting in support of it.
“That’s the form that has been consistently upheld by courts around the country,” he said after the meeting. “The version that we passed out of the committee has been rejected by courts in every published decision that I’ve seen.”
“So, I don’t know why we would try to move forward with a bill that time after time has been determined to be unconstitutional and rejected.”
The Judiciary Chair said he plans to talk with other senators about the amendment before the bill is introduced in his committee, but says he doesn’t expect to receive much support.
He added he expects court challenges should the 20 week ban be passed by the full legislature.