News Abortion

West Virginia Governor Vetoes 20-Week Abortion Ban

Sharona Coutts

Last Friday, Tomblin vetoed the bill, HB 4588, which resembles legislation passed and later blocked by courts in Arizona, Georgia, and Idaho.

West Virginia Gov. Earl Ray Tomblin has vetoed a bill that would have banned abortions after 20 weeks of pregnancy in the state.

Last Friday, Tomblin vetoed the bill, HB 4588, which resembles legislation passed and later blocked by courts in Arizona, Georgia, and Idaho.

“I have vetoed HB 4588 because I am advised, by not only attorneys from the legislature, but through my own legal team that this bill is unconstitutional,” Tomblin said in a statement announcing his decision.

While much of the coverage of the veto has focused on his statement that the law was clearly unconstitutional, the governor made two other points that evince a significant victory for reproductive health and rights advocates.

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“The bill is also problematic because it unduly restricts the physician-patient relationship,” Tomblin said. “All patients, particularly expectant mothers, require the best, most unfettered medical judgment and advice from their physicians regarding treatment options.”

High-ranking doctors, including the chair of obstetrics and gynecology at West Virginia University as well as members of the American Congress of Obstetricians and Gynecologists and the West Virginia State Medical Association, went to West Virginia’s state house to lobby and testify against the proposed ban.

However, in keeping with a trend that is gaining pace around the United States, the legislators—including many Democrats—voted for the bill despite the doctors’ views.

By contrast, the governor decided to follow the advice of medical experts.

“The medical community has made it clear to me that the criminal penalties this bill imposes will impede that advice, and those options, to the detriment of the health and safety of expectant mothers,” he said.

Reproductive rights advocates welcomed the governor’s decision, calling the bill “dangerous.”

“We believe that these decisions should be made by a woman in consultation with her physician, not by legislators,” said Margaret Chapman Pomponio, executive director of WV FREE, in a press release. “The Governor made the right choice in vetoing this bill and we are heartened by his decision to place his trust in the women of West Virginia and the medical community.”

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

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The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Law and Policy

Missouri Governor Vetoes Sweeping Concealed Carry Bill, Republicans Plan Override

Michelle D. Anderson

In a four-page letter to Missouri Secretary of State Jason Kander, Gov. Jay Nixon said that he disapproved of SB 656 because citizens would be able to bypass the training, education, background check, and permit requirements currently needed to carry a concealed firearm in spaces where it is allowed.

Citing the safety of Missouri citizens, Gov. Jay Nixon (D) on Monday vetoed a bill that would have removed the vetting process for individuals seeking to carry a concealed firearm throughout the state.

In a four-page letter to Missouri Secretary of State Jason Kander, Nixon said that he disapproved of SB 656 because citizens would be able to bypass the training, education, background check, and permit requirements currently needed to carry a concealed firearm in spaces where it is allowed.

The Republican-controlled general assembly passed the bill on May 13, the last day of the legislative session.

The bill would have also allowed residents and nonresidents alike to carry a concealed firearm even when they have been denied a permit due to criminal offenses or because a state sheriff believed they posed a danger to the public, the governor’s office said in a news release Monday.

As noted in the Kansas City Star, “Under current Missouri law, gun owners may legally ‘open carry’ a weapon anywhere that does not expressly forbid the practice. Carrying a concealed weapon requires a permit.”

The bill also would have created a “stand your ground” law—the kind of policy often cited with regard to the murder of Trayvon Martin—and reduced the penalty for carrying a firearm into a prohibited space from a felony to a misdemeanor.

Additionally, the bill would have allowed those seeking a concealed carry permit to obtain a version of the document that never expires.

Nixon noted he signed a bill passed by the general assembly in 2013 that affirmed the role of Missouri sheriffs in issuing and denying concealed carry permits. In some cases, police chiefs can also issue permits.

“As Governor, I have signed bills to expand the rights of law-abiding Missourians to carry concealed and am always willing to consider ways to further improve our [carry and conceal weapon] process,” Nixon said. “But I cannot support the extreme step of throwing out that process entirely, eliminating sensible protections like background checks and training requirements, and taking away the ability of sheriffs to protect their communities.”

Nixon went on to say individuals who have pleaded guilty to a felony, 18-year-old high school students, and persons convicted of a misdemeanor assault, among others, could automatically could carry a concealed weapon “without scrutiny, training or notification,” if he did not veto the proposed law. Those individuals are currently forbidden from obtaining permits.

Missouri’s current concealed weapon process has been in place since 2003. The required procedure includes taking a mandatory course of at least eight hours that covers handgun safety, the principles of marksmanship, safe firearms storage, and the Missouri law.

In addition to classroom education, individuals must demonstrate that he or she can safety load and unload a handgun and successfully complete a live firing exercise that includes 20 rounds at a target, among other tasks.

Nixon’s veto garnered support from Kansas City Mayor Sly James, Kansas City Police Chief Darryl Forté, the Missouri Police Chiefs Association and the Missouri Fraternal Order of Police, according to Nixon’s office and local news reports.

The veto comes as Missouri and the rest of the nation grapple with mass shootings in Orlando, Florida, and San Bernardino, California, as well as the high number of firearm deaths nationwide.

Firearms led to 33,636 deaths nationwide in 2013, according to The Centers for Disease Control and Prevention’s most recent data.

Bill sponsor Sen. Brian Munzlinger (R-Lewis County) invoked those recent mass shootings in criticizing Nixon’s veto, saying lawmakers should be doing all they could to ensure “the citizens of Missouri have the ability to protect themselves,” according to the Kansas City Star.

Many Republican senators anticipate overriding Nixon’s veto when the general assembly returns to the state capitol in September, also according to the newspaper.

State senator and Secretary of State hopeful Will Kraus (R-Lee’s Summit), for example, said in a statement that he hoped lawmakers would override the bill later this year. House Speaker Todd Richardson (R-Poplar Bluff) reportedly made similar remarks.