Analysis Environment

Don’t Drink the Water: The West Virginia Chemical Spill as a Reproductive Justice Issue

Emily Crockett

Pregnant women and young families continue to face environmental, economic, and legislative hardships more than six weeks after a devastating chemical spill in West Virginia.

At two-and-a-half years old, Susana Duarte’s son is starting to learn lifelong habits, like how and when to wash his hands. But more than six weeks after a chemical spill contaminated the Elk River near their home in Charleston, West Virginia, the young boy’s routine now includes asking his mother, “Is the water broken?”

Duarte answers yes, the water is still broken—unless they are at her parents’ house, outside the spill zone, where she refills two seven-gallon jugs of water every week. She still only uses bottled water to bathe her son, but she’s considering using tap water to do dishes again since the chemical’s distinctive licorice-like odor has finally left their home. She’s also started allowing herself a brief shower every other day, while her husband takes one every day. “Everyone sort of makes their own rules to make themselves feel comfortable,” Duarte, an attorney, told Rewire. “That is my rule.”

Duarte is also around 16 weeks pregnant.

After the chemical company Freedom Industries spilled a coal-cleaning chemical called MCHM into the Elk River on or before January 9, dumping 10,000 gallons of a substance with unknown human health effects into the water supply of 300,000 West Virginia residents, officials immediately cautioned locals not to use the water for anything other than flushing the toilet or putting out fires.

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On January 13, Gov. Earl Ray Tomblin said that the water was testing below the acceptable levels set by the Centers for Disease Control and Prevention (CDC)—one part of MCHM per million—so residents in the spill zone could start using the water as they chose. But late in the evening on January 15, the CDC recommended that out of an abundance of caution, pregnant women should stick to bottled water until the tap water samples came back with non-detectable levels of MCHM.

“We had potentially more than two days where pregnant women had already been consuming the water,” Dr. Rahul Gupta, executive director of the Kanawha-Charleston Health Department, told Rewire.

Duarte hadn’t used tap water during that window, but she still has concerns about the spill’s effect on her pregnancy. When the spill was announced, she was in her first trimester and hadn’t yet told anyone but close friends and family about the pregnancy. “It was an added layer of stress, to have this good news that you’re not sharing because you’re worried about all the things that can go wrong with a pregnancy normally—and then you’ve added a layer of a significant health concern on top of it,” she said.

The CDC has said since early February that the water is safe to drink for everyone in the region, including pregnant women, because tested water is at “non-detect” levels of MCHM—that is, less than ten parts per billion. Some tests can detect levels as low as one part per billion, and Gupta said he would like to see more testing done at those lowest levels. But he said that there are still many unknowns, especially where homes are concerned.

Officials don’t know, Gupta said, whether the chemicals might have leeched into the materials in home pipes, which are typically made of copper or plastic rather than the iron or PVC found in the kinds of central distribution pipes that have already been tested. The hot water in homes in the region tends to smell stronger than the cold water, which could mean that sediment is forming in hot water heaters.

Even non-detect levels haven’t always necessarily meant “safe,” as West Virginians found out with disruptive spill-related school closings that happened around the same time the CDC lifted its advisory. Three schools closed, and 14 issued complaints to health officials, as students and teachers reported strong odors and symptoms of light-headedness and watery eyes. 

Already, pregnancy is “a very anxious time in people’s lives,” said Margaret Chapman Pomponio, executive director of reproductive rights advocacy group WV Free. “For a pregnant woman to have this kind of anxiety, uncertainty, and financial strain—it’s potentially harmful to her pregnancy.”

WV Free has been fundraising since the disaster to benefit pregnant women in need of relief as a matter of both reproductive and environmental justice.

And some advocates argue that this is not the first time West Virginia’s government has failed to protect the freedom of pregnant women and families to live without fear of environmental hazard.

A Breakdown in Trust

Officials at the January 15 press conference, at which it was announced that pregnant women should avoid tap water, said the precautionary advisory was intended to “empower” pregnant women, but many felt more confused and scared than empowered.

“It was just this frustration, every time a new announcement came out, that they didn’t know enough to support their claims,” Duarte said.

In addition to the pregnancy flip-flop, the state of West Virginia set its standard of what it deems a safe level of the chemical for humans at ten parts per billion, which is 100 times less than the level originally recommended by the CDC (one part per million), after serious questions emerged over how the CDC’s standard was determined and hospitals began seeing an increasing number of patients with rashes and eye irritations. So little testing had been done on the safety of MCHM that no one really knew what a safe level for humans, much less pregnant women, was.

What’s more, on January 23 it was announced that a second chemical had been spilled into the river in addition to MCHM. And then two additional chemical spills were reported in the river in the following weeks.

With the constant mixed messages from officials, many residents have been feeling acutely betrayed by their government. “The public is told one thing one day and another the next,” Chapman Pomponio said. “Trust has been broken.”

Duarte still doesn’t drink the water and doesn’t expect to for some time, but she still worries. What if, say, showering or washing her hands is doing some kind of harm to her pregnancy? “I’ve got an ultrasound coming up, and not that I think anything would show up at this stage from that anyways—but you’re like, what if something is there? It’s the stuff I worried about the first time [I was pregnant], but that I’m worrying about in a different way now.”

If pregnant women are worried, what about nursing women or small children? The CDC’s guidelines never specified anything about them.

“The suggestion is, the water might not be safe for a pregnant woman or an unborn child—but one minute after birth, it’s safe for both of them?” asked Lynn Paltrow, executive director of National Advocates for Pregnant Women in an interview with Rewire.

Gupta, of the local health department, pointed out that extra caution may be appropriate for pregnant women because of all the unknown factors that can negatively influence, or interrupt, fetal development. But a pediatrician told the Kanawha Charleston Board of Health that if the guidelines apply to pregnant women, they should also apply to children under 3 years old. And Gupta said that from a purely scientific perspective, “there is no safe level of MCHM in the water, until and unless a study establishes one.”

“We just have no data to say one way or the other,” Gupta said. “We are only as good as our data.”

A Question of Choice, A Chance for Justice

Sarah Brown, a nursing mother in Charleston, washes all of her son’s baby bottles by hand daily with bottled water. She and her husband have started using tap water for laundry, showers, and some dishes.

“The scariest thing for us is not knowing what the long-term impact may be,” Brown told Rewire. “One of the reasons we’re interested in breastfeeding, and trying to make our own baby food and things like that, is that we know exactly what’s going into [our baby’s] system.” Now, Brown said, she can’t be so sure.

Despite their reproductive health concerns and daily logistical headaches, both Duarte and Brown, also an attorney, know that they enjoy privileges many of their neighbors do not. They each have family members or coworkers in nearby towns outside the nine-county spill zone, the transportation and time to drive there and do laundry or fill up water bottles, and the financial means to buy additional bottled water or other supplies if needed. Neither of the women has taken advantage of the state’s water distribution sites, reckoning that others need them more.

Virginia Gardner is one of those people in greater need, but she has also had great difficulty accessing the water distribution sites. Gardner is one of several petitioners in a lawsuit currently before the state supreme court against the state’s Department of Environmental Protection, Bureau for Public Health, and Department of Health and Human Resources. According to the petition, Gardner is living in subsidized housing on a small fixed income with her 2-year-old son. She doesn’t have a car to access distribution sites, and they are too far to walk to. Even when she did find a walking-distance site (a few days after the spill, when such sites were more plentiful than they were later in the crisis), she couldn’t carry enough water for her son and herself while also pushing his stroller. She once took her son to the hospital with chemical burns to his eyes because her landlord allegedly did not take the proper steps to flush the hot water tank.

“[Gardner] has a lot of fear related to this, and her options and her choices are dramatically limited because of her financial means, and that impacts her ability to be the parent she wants to be,” said Jennifer Wagner, an attorney at Mountain State Justice, a nonprofit law firm representing the petitioners.

Wagner said that the petitioners in the lawsuit are not seeking damages. Rather, they seek to highlight the plight of low-income and vulnerable residents, get the state supreme court to force state agencies to fulfill their obligations to keep the water supply safe, and make sure something like this never happens again.

“The way things are going, and the way things unfortunately have gone in the past, is that we have a disaster, and then we have another disaster a couple of years down the road,” Wagner said. “Our state agencies have been on notice for quite some time that something like this was about to happen, and yet didn’t take any of the actions that they knew they should have and could have taken in order to prevent it.”

One of those actions would have been implementing recommendations from a Chemical Safety Board that was formed in the wake of other accidents, but not followed up on. Pending legislation to fix some of these problems is good and necessary, Wagner said, but it may end up with too many exceptions to placate the state’s powerful extractive industries. A favorable court ruling and a good bill should, even must, work together to prevent future crises.

“It’s your decision,” Gov. Tomblin infamously told West Virginia residents when asked by reporters whether the water was actually safe to drink. “I’m not going to say absolutely, 100 percent that everything is safe. But what I can say is if you do not feel comfortable, don’t use it.”

“This is a false choice low-income people have,” said Ellen Allen, executive director of Covenant House, a day shelter for the working poor that is also a petitioner in the lawsuit. “They can’t afford it. They scrape by a little money, borrow water, we bring them water, and they bathe their children in the bottled water. They’re moms, they look after their kids first, and if there’s anything left for them, they use it—otherwise they just drink [tap water] and don’t know if it’s safe or not.”

For reproductive justice advocates, “choice” has an additional, and bitterly ironic, meaning in this context.

Chapman Pomponio of WV Free said it was “ridiculous” for the House Judiciary Committee to consider a 20-week ban on abortion (which it passed on Friday) when that committee is also tasked with the all-important “water bill.”

“There’s a historical unwillingness to regulate the coal and chemical industries, despite significant evidence of the need for that regulation,” said Paltrow of National Advocates for Pregnant Women. “And yet there is consideration of more regulation of abortion providers and pregnant women, without any evidence of need for that regulation.”

“It’s easier to tell pregnant women not to drink the water than to make the water safer for everybody,” Paltrow said.

The future health and reproductive autonomy of West Virginia residents remains uncertain. Gupta says his office is going to start studying possible long-term health effects from exposure to MCHM. Initial testing on ten different homes in different affected counties, which the governor initially resisted, should be completed in a few weeks, after which more funding will have to be allocated for wider home testing based on those initial results. And an unconstitutional 20-week abortion ban, considered likely to cost the state time and money only to be defeated in court, may well pass both the state house and senate.

Susana Duarte still second-guesses whether she is doing all that she can to end up with a healthy pregnancy. Virginia Gardner waits for justice and hopes to raise her son in a chemical-free Charleston. Sarah Brown, the nursing mother, said that while she plans to stick it out and advocate for change (she works with Wagner at Mountain State Justice, though she is not involved with the lawsuit), she also knows one couple with a toddler who have left town. “It’s something I worry about, people with young kids leaving, rather than staying to revitalize and make a vibrant community. It’ll be hard to retain people,” she said.

And Margaret Chapman Pomponio finds hope in a newly engaged public. “People are really mobilized,” she said. “People who have not considered themselves to be activists before find themselves turning out at multiple community events, coming to the state capitol, lobbying legislators and the governor. So we really are hopeful that with this mobilization we’ll see some positive policy change.”

News Abortion

West Virginia Governor Vetoes GOP’s Ban on Common Abortion Procedure (Updated)

Teddy Wilson

Republican supporters of the anti-choice bill are preparing to hold a vote to override the governor’s veto, which could come as early as Thursday.

UPDATE, March 11, 10:25 a.m.: West Virginia’s GOP-majority legislature voted Thursday to override the governor’s veto. The new law banning the dilation and evacuation abortion procedure will take effect in 90 days.

West Virginia Gov. Earl Ray Tomblin (D) on Wednesday vetoed a bill that would criminalize a medical procedure often used after a miscarriage and during second-trimester abortions.

SB 10, sponsored by state Sen. Dave Sypolt (R-Preston), would prohibit someone from performing or attempting to perform a dilation and evacuation (D and E) procedure unless it is necessary to prevent serious health risk to the pregnant person.

The D and E procedure is commonly used in second-trimester abortion care. During the procedure, a physician dilates the patient’s cervix and removes the fetus using forceps, clamps, or other instruments.

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“I am advised this bill is overbroad and unduly burdens a woman’s fundamental constitutional right to privacy,” Tomblin said in a statement. “Among the bill’s prohibitions is a leading pre-viability medical procedure [D and E] that, for reasons of patient safety, is preferred by physicians.”

Under the GOP-backed bill, a physician who violates the anti-choice law would be guilty of a felony and may be fined $10,000 and imprisoned for up to two years. The physician may also face injunction and civil damages.

Republican legislators in several states have pushed legislation to ban the D and E procedure over the past year. The bills have been copies of legislation drafted by the National Right to Life Committee (NRLC).

Federal courts have blocked similar measures passed by GOP lawmakers in Oklahoma and Kansas.

Margaret Chapman Pomponio, executive director of WV FREE, a reproductive health advocacy organization, praised Tomblin for vetoing the bill. She said in a statement that the legislation would take away a pregnant person’s ability to make personal medical decisions in consultation with their health-care provider and prohibit physicians from providing the safest possible care.

“These decisions should be made by a woman in consultation with her provider, not by legislators. Politicians shouldn’t play doctor,” Pomponio said. “We are heartened by Gov. Tomblin’s decision to place his trust in the women of West Virginia and the health-care community.”

Republican supporters of the bill are preparing to hold a vote to override the governor’s veto. West Virginia State Senate President Bill Cole (R-Mercer) told the Gazette-Mail that an override vote could come as early as Thursday.

“I believe Senate Bill 10 strikes the right balance between the rights of physicians to practice medicine, a woman’s right to privacy and the lives of unborn children,” Cole said. “The Senate will vote to override this veto without delay.”

Lawmakers can override the governor’s veto with a simple majority vote of the members of both legislative chambers. They have until Saturday at midnight before the legislature adjourns. Republicans hold a two-seat edge in the state senate, along with a 64-36 advantage in the house. 

West Virginia’s GOP-majority legislature voted last year to override Tomblin’s veto of an unconstitutional ban on abortion after 20 weeks, which was the the first time a governor’s veto has been overridden in West Virginia since 1987.

News Abortion

West Virginia GOP Targets Common Abortion Procedure

Teddy Wilson

A physician who violates the anti-choice law would be guilty of a felony. Federal courts have blocked similar laws passed in Oklahoma and Kansas.

West Virginia Republicans this week passed a bill that would criminalize a medical procedure often used after a miscarriage and during second-trimester abortions.

SB 10, sponsored by state Sen. Dave Sypolt (R-Preston), would prohibit someone from performing or attempting to perform a “dismemberment abortion” unless it is necessary to prevent serious health risk to the pregnant person. 

The bill targets the dilation and evacuation (D and E) procedure, commonly used in second-trimester abortion care. During the procedure, a physician dilates the patient’s cervix and removes the fetus using forceps, clamps, or other instruments.

A physician who violates the anti-choice law would be guilty of a felony and may be fined $10,000 and imprisoned for up to two years. The physician may also face injunction and civil damages.

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Legislation to ban the D and E procedure has been introduced by Republican legislators in several states over the past year. The bills have been copies of legislation drafted by the National Right to Life Committee (NRLC).

D and E bans are the latest chapter in a decades-old strategy by the anti-choice movement to target specific abortion procedures. Health and medical professionals criticize these bans as substituting politicians’ agendas for the judgment and expertise of doctors.

The state house on Monday voted 86 to 13 to pass the legislation, known as the “Unborn Child Protection from Dismemberment Abortion Act.”

Kelly Baden, director of state advocacy for the Center for Reproductive Rights, told the Associated Press that banning the procedure is unconstitutional.

“Laws like these are an attack on women’s health, personal autonomy, and the doctor-patient relationship, and they have the potential to force physicians to subject women seeking safe and legal abortion services in the second trimester to additional invasive and unnecessary procedures,” Baden said.

Federal courts have blocked similar measures passed by GOP lawmakers in Oklahoma and Kansas. 

“I really believe the ultimate goal of this legislation is to take away women’s health services, one by one, until no safe, legal options are available to any woman who makes a decision to end a pregnancy,” Delegate David Pethtel (D-Wetzel) said during the floor debate, reported the Gazette-Mail.

The state senate on February 17 voted 24 to 9 to pass the bill. The law was amended in committee to allow for D and E abortions to take place after “fetal demise.”

State Sen. Ryan Ferns (R-Ohio), chairman of the West Virginia Senate Health and Human Resources Committee, told the Associated Press that the amended version of the bill gives the physician a variety of ways to comply with the law.

Delegate Stephen Skinner (D-Jefferson), told the Associated Press that the legislature should not be involved in banning a medical procedure. “We need to let doctors decide what’s best for their patient in consultation with the patient and her family. The legislature getting into the practice of medicine is a dangerous thing,” Skinner said.

The West Virginia House Health and Human Resources Committee last month held a hearing on the bill, during which supporters of the anti-choice legislation called the procedure “barbaric” and “gruesome.” No physicians gave testimony during the hearing.

Opponents of the legislation said during the house committee hearing that it was objectionable to use religion and shocking language as a justification for restricting reproductive health care.

“It’s inappropriate to apply the shocking term ‘dismemberment’ to the safe and sometimes medically necessary procedure known as dilation and evacuation,” the Rev. Rose Eddington, a Unitarian Universalist minister, said during the hearing, reported the Gazette-Mail. “Legislation restricting choice uses religion to exert power over women. Don’t legislate your religious teaching onto the rest of us.”

Abortions are usually performed using vacuum aspiration prior to 14 weeks’ gestation, but after 14 weeks, the D and E procedure is used, according to the American Congress of Obstetricians and Gynecologists. D and E abortion bans may effectively outlaw surgical abortions past 14 weeks’ gestation. 

Another option available to patients seeking abortion care past 14 weeks’ gestation would be to undergo a medically induced, nonsurgical abortion. Kathleen Morrell, an OB-GYN and a fellow of Physicians for Reproductive Health, told the New York Times that this type of abortion care can involve significant waiting periods and may require access to hospital facilities.

“When it is safe to offer a choice of induction or D and E,” she said, “my patients overwhelmingly choose D and E. They are able to be asleep and comfortable for the procedure and then can go home to their own beds at night.”

Democratic West Virginia Gov. Earl Ray Tomblin has not yet stated whether he will veto the bill. However, the GOP-majority legislature would be able to override a veto, as they did last year after Tomblin vetoed an unconstitutional ban on abortion after 20 weeks