Dave Mistich Published

Abortion in an Election Year: Constitutionality Central to the Debate Over Taxpayer-Funded Services


A bill that would remove Medicaid funding for medically necessary abortions has been drawing a lot of attention in the House since passing through that chamber’s Health Committee last week. While the issue is inherently divisive, many questions about House Bill 4012’s constitutionality have been raised — further drawing attention to the matter.

According to a recent Hart Research poll, nearly two-thirds of West Virginia voters support the state’s Medicaid program covering a range of reproductive health care services, including annual check-ups, prenatal and maternity care, birth control and abortion. House Bill 4012 would remove medically necessary abortions from a list of those services that Medicaid provides.

In 1993, the West Virginia Supreme Court of Appeals overturned a law signed by then-Governor Gaston Caperton that included a provision banning abortions for low-income women when medically necessary. The court determined that it was discriminatory to not provide such services to low-income women.


Republican Del. Kayla Kessinger is the lead sponsor of House Bill 4012. She said the bill takes a different approach to the one that was struck down in 1993.


“The way that we are going about this bill is to redefine the medical procedure and we are well within our rights as the Legislature to define and redefine words. We do it almost every day in the Legislative and the legislative process,” Kessinger said.


“So, I believe that this bill is constitutional. But as with every piece of legislation we pass the Supreme Court can and may have a final decision.”


Kessinger also argues that some taxpayers object to paying for abortions and that the number and cost of them has increased in recent years.


According to data from the West Virginia Department of Health & Human Resources’ Bureau for Medical Services, 1,506 abortions were provided by Medicaid in State Fiscal Year 2017 — coming in at a cost of more than $326,000. While the number of Medicaid funded abortion has more than doubled since 2008, the cost to the state has increased by about a third — an increase of just over $100,000.


The American College of Obstetricians and Gynecologists opposes House Bill 4012. As an OB-GYN, House Health Chairman Joe Ellington is a member of that organization. His committee advanced the bill last week, sending it on to its second reference in the House Judiciary Committee. An amendment to House Bill 4012 was shot down in the House Health Committee that would have kept Medicaid funding in place for abortions if the pregnancy occurred as a result of rape or incest.


Chairman Ellington acknowledged the controversial nature of the bill, but said he could not speak to any issues of constitutionality.


“One concern is that having taxpayer money that goes toward performing an abortion but on the other side in the position the West Virginia colleague has is that you want to make sure that our citizens can obtain safe and legal abortions if they so desire,” Ellington said.


“Paying for that is how you would go about that, though. So, whether taxpayer funds go to it — or contributions — from private organizations or nonprofit organization that may supplement the costs for individuals that are seeking abortions. So, as long as they do it under the code of West Virginia, it should still be legal,” he said.


Top House Democrats, though, argue that the bill should not be a priority for the Legislature. Minority Leader Tim Miley also said the legislation addresses an issue that doesn’t need attention and, furthermore, gets in the way of decision made between a woman and her doctor.  


“This is par for the course for this leadership team of raising issues that try to divide people instead of bringing people together. But, in this case, I understand the bill is to address pregnancy terminations that are paid for by Medicaid,” said, Miley, noting that the the only pregnancies that are terminated by using Medicaid are those that are medically necessary and certified by a doctor.


“I’m not really sure what the issue is and why they’re trying to make it an issue other than having government inject itself into the lives of a woman and the advice she’s getting from her doctor,” he added.


House Minority Whip Mike Caputo echoed Miley’s concerns as far as legislative priorities. And with House Bill 4012’s constitutionality in question, Caputo says the Republican majority may be using the measure as a barometer for support for a joint resolution that could find its way onto a ballot as a constitutional amendment. But, if it comes to that, Caputo said the issue should stand on its own and away from election of state officials.


“If this Republican leadership team really believes that’s an issue that should be on the ballot — and if it’s about policy — then let’s have a special election and let’s do it prior to the general election,” Caputo said.


Caputo and other Democrats believe that putting a constitutional amendment on the ballot could be a way for Republicans to try to retain the majority in the Legislature.


“The only point I want to make is, if this is really about policy —  if this is something they think is good for West Virginia — then we should have it on a special election with no other candidates on there and just these issues. And let’s find out what people really want,” Caputo said.


While not yet on the agenda, the House Judiciary Committee is expected to take up House Bill 4012. As for the larger issue of abortion, lawmakers from either chamber have yet to introduce a joint resolution that would address the matter.