This November, residents of Alabama and West Virginia will vote on whether to add anti-abortion language to their states’ constitutions. The two ballot initiatives had been proposed prior to Anthony Kennedy’s retirement from the Supreme Court and Donald Trump’s nomination of anti-abortion judge Brett Kavanaugh to fill the vacancy. Even so, they’re best understood as a preview of the types of measures conservative-leaning states will push for to prepare for the event that Roe v. Wade gets overturned.
In West Virginia, right-wing state legislators have long struggled to figure out how to fight a 1993 state Supreme Court decision that affirmed a right to abortion care and Medicaid funding for abortion, the latter of which the state had previously banned. That ruling interpreted the state constitution to protect abortion and mandated that the state fund abortion care for low-income women in the same way it funds care for women who carry their pregnancies to term. The initiative that’s about to go on the ballot would add one sentence—“Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”—to the state constitution. If it’s enacted, the court’s interpretation would be negated and the West Virginia legislature would once again be free to regulate abortion within the confines of federal law.
Alabama’s ballot initiative would do a lot more. In addition to a stipulation that the constitution does not protect a right to abortion care or abortion funding, the proposed text would assert that it is the state’s policy “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” Adding fetal rights to the constitution could have far-reaching effects, from criminalizing abortion and certain kinds of contraception to allowing 5-day-old embryos to sue adult humans in court and requiring couples who undergo fertility treatments to pay for the upkeep of their spare frozen embryos in perpetuity.
Neither ballot initiative, if passed, would outlaw abortion outright. Because the court’s decisions in Roe v. Wade and Planned Parenthood v. Casey prohibit states from banning abortions before the point of fetal viability, any state laws that do so are unenforceable. But even if the Supreme Court holds off on undercutting Roe, there will be immediate ramifications if West Virginians vote in favor of the initiative. Women on Medicaid in the state would lose their ability to access funding for abortion care, making the procedure prohibitively expensive for many. This loss would affect a significant proportion of the population: West Virginia ranks sixth in the country for state Medicaid registration, with more than 28 percent of residents enrolled.
The Alabama initiative, by contrast, would have no clear, immediate impact on state law. Rather, it’s in keeping with laws that are already on the books in other states that will outlaw abortion and penalize abortion seekers and abortion providers if Roe gets gutted. In Oklahoma, there’s a criminal statute that stipulates that a woman who attempts to procure an abortion can be sent to jail for up to a year. Four states have “trigger laws” that will ban abortion the moment Roe is overturned, and seven have articulated a plan to restrict abortion to the full extent allowed by the Supreme Court. In 10 states, abortion bans passed before Roe are still on the books, set to take effect if Roe falls. That list includes Alabama, Mississippi, Massachusetts, New Mexico, and, crucially, West Virginia, where the existing unenforceable law and the proposed modification to the constitution would, in concert, criminalize abortion providers as felons if the Supreme Court overturns Roe.
Though Alabama’s existing abortion ban would also come into effect the moment Roe fell, its ballot initiative isn’t as critical as West Virginia’s, as it wouldn’t amend the state’s consitution. The Alabama initiative also made it to the ballot much more easily—it only required a three-fifths vote in the state legislature, both chambers of which are more than three-fifths Republican. In West Virginia, two-thirds of both chambers of the state legislature had to support the initiative to get it on the ballot, and the chambers are more evenly split between the parties. In each chamber, Democrats helped Republicans pass the anti-abortion initiative; they played a particularly crucial role in the state House, where it would have failed if the nine Democrats who voted to curb abortion rights had gone the other way. As Democratic Party leaders waffle on whether they should support anti-abortion candidates, they would do well to learn from examples like West Virginia’s, where Democrats had the opportunity to protect reproductive health care for their low-income constituents and chose to sell them out instead.
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