A state lawmaker who remarked that it is “beautiful” when a child can be born as the result of a rape says his remarks were misrepresented. Republican Del. Brian Kurcaba said Friday that he’s sorry if people interpreted his statement as meaning anything other than “all children are precious regardless of circumstance.”
Kurcaba’s comments Thursday during committee discussion on an abortion-ban proposal sparked outcry.
He said, “Obviously, rape is one of the most egregious acts that anybody can ever do to somebody. It’s awful.
“For somebody to take advantage of somebody else in such a horrible and terrifying and brutal way is absolutely disgusting. But what is beautiful is the child that could come as a production of this.”
State lawmakers are again pushing the Pain Capable Unborn Child Protection Act in West Virginia, despite last year’s veto.
The House Health and Human Resources Committee began discussing House Bill 2568 Thursday. Witnesses speaking to the committee disagreed on whether a fetus can or cannot feel pain at the 20 week gestation mark.
Dr. Mitzi Payne, a Pediatric Neurologist at Marshall University says they can’t.
“Because when we’re looking at what neuron connects to another in our pathological specimens, it’s not telling us how they’re functioning, it’s just if they’re there or not, and just because a neuron might be connecting to another neuron in the subcortical plate that an adult might be responsive we don’t know that in the fetus. Just because it’s there, physically there, doesn’t mean one part is talking to the other,” said Payne.
Jennifer Popik, an attorney and a representative with the National Right to Life says they can.
“We’re very cognizant that there is some dispute in the medical community about this. And the courts tell us, you know, we don’t need to be 100%, but there just needs to be a body of evidence that you all find. And we can definitively, you know, we can show with an overwhelming, a more overwhelming body of evidence that at 20 weeks, we can more safely say that,” Popik said.
During a House of Delegates public hearing Thursday, opponents called the proposal likely unconstitutional and intrusive into doctor-patient relationships.
Proponents cited moral and religious grounds.
The Democratic-run Legislature passed a similar proposal overwhelmingly last year. But Governor Tomblin vetoed the legislation over constitutionality concerns.
Tomblin says he’d veto the bill again if it’s the same. The legislature, now in the hands of Republicans, need a simple majority to overturn his veto.
Two West Virginia advocacy groups gathered outside the House of Delegates Thursday to protest a bill they say is unconstitutional. Lawmakers in the chamber have re-introduced the 20 week Pain Capable Unborn Child Protection Act, this year with additional provisions.
The Pain Capable Unborn Child Protection Act makes it illegal for a medical professional in the state to conduct an abortion after 20 weeks except with the woman has a medical emergency.
It also sets up civil and criminal penalties for doctors who do not comply with the ban.
The bill was passed by both the House and Senate during the 2014 legislative session, but vetoed by the governor because he questioned its legal standing.
“It takes healthcare decision making out of the hands of women and their trusted providers and puts it into the hands of government,” Margaret Chapman Pomponio, executive director of West Virginia Freedom for Reproductive Education and Equality or West Virginia FREE, said before the demonstration.
“The legislature frankly isn’t in a position, they don’t have the knowledge to make these kinds of decisions.”
Supporters of @wvfree and @ACLU_wv asked to chant quietly b/c House is still in session. #wvlegis A video posted by Ashton Marra (@ashtonmarra) on Jan 22, 2015 at 9:15am PST
Jennifer Meinig with the West Virginia American Civil Liberties Union says this year’s version of the bill is much more extreme than the version approved by lawmakers last year, and is still unconstitutional.
“Every court in the country that’s addressed this issue has found bans like this to be unconstitutional and this bill is no different,” she said.
The bill also creates a litigation fund, essentially a pool of money for the attorney general’s office to help pay for legal proceedings that may come if the bill is passed and enacted.
The bill has been sent to the House Health and Human Resources Committee for consideration. A similar piece of legislation was introduced in the Senate earlier this week.
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.
Members of the Senate Health and Human Resources Committee.
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.
