Analysis Abortion

What Impeachment of the West Virginia Supreme Court Could Mean for Abortion

Kenyetta Whitfield

It’s not just a party shift Gov. Jim Justice (R) is attempting to make in the courts by replacing impeached justices with Republicans—it’s an ideological one.

West Virginia’s Supreme Court of Appeals garnered national attention in August when the state’s House of Delegates voted to impeach the entire bench. This unusual move by the Republican-led state House Judiciary Committee throws not only the fate of the justices into question, but could mean critical changes to reproductive rights in the state.

The Committee adopted articles of impeachment against each of the court’s remaining sitting justices: Chief Justice Margaret Workman, Justice Robin Davis, Justice Beth Walker, and Justice Allen Loughry. The articles accuse the four justices of a variety of different charges, including: “maladministration, corruption, incompetency, neglect of duty, and certain high crimes,” according to USA Today. Prior to the proceedings, the fifth justice of the court, Justice Menis Ketchum, resigned after being charged with wire fraud—a federal charge which he later pleaded guilty to—and personal use of a state vehicle.

The composition of the court hangs in the balance. On Tuesday, the West Virginia Senate rejected a motion to exclude Davis from trial, even though she had announced her retirement soon after the impeachment decision. Significantly for the future of the bench, just two weeks after the announcement of impeachment, Gov. Jim Justice (R) named Republicans Tim Armstead and U.S. Rep. Evan Jenkins as replacements for Davis and Ketchum. Whether the charged justices are convicted or not, both Justice-made replacements will serve until the November special elections. If the remaining three justices are convicted, Gov. Justice—the former Democrat, now Republican—will appoint additional replacements to serve until 2020.

These new appointments could mean crucial changes, including threats to abortion in the state.

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Such shifts are possible, according to Terry Madonna, director of the Center for Politics and Public Affairs and professor at Franklin and Marshall College, because a state’s supreme court decides the constitutionality of its laws.

“There’s always a possibility when you have major changes on the court that you could have major changes in philosophy,” Madonna said in an interview with Rewire.News.

West Virginian Margaret Chapman Pomponio seconded this belief, describing the newest composition of the court as “unfriendly towards reproductive health.” She believes that with Gov. Justice’s appointments in power, attacks to abortion access are likely.

“Tim Armstead is one of the most conservative and fundamentalist politicians that the state has ever seen,” Pomponio said in an interview with Rewire.News.

Pomponio is the executive director of WV Free Action Fund, a nonprofit that seeks to “ensure the reproductive health of women and people who can get pregnant at the state and national level and to broaden the base of active and vocal support for reproductive justice in West Virginia,” according to the organization’s mission statement.

“With this takeover, it’s possible that we would see a shift in the balance of ideology … [which] would be very dangerous,” Pomponio said.

Armstead represents the kind of conservative and anti-choice ideology that has the potential to drastically shift West Virginia’s political landscape. His voting record has consistently indicated that he does not support the right to an abortion. The former West Virginia house speaker voted in 2015 to uphold the state’s 20-week abortion ban, though the right to an abortion is a constitutional right guaranteed by Roe v. Wade.

Jenkins’ place on the Supreme Court also spells out danger for reproductive rights and many other progressive issues in West Virginia. Jenkins has voted numerous times to repeal the Affordable Care Act, and has expressed support for President Trump’s heavily-criticized anti-Islamic Muslim ban.

Jenkins is also a supporter of the federal Pain-Capable Unborn Child Protection Act, which would ban abortions after 20 weeks of pregnancy and the Conscience Protection Act, which would allow employers to deny health care coverage to those seeking abortions, without federal consequences.

Both Republican appointees replace Democrats. But it’s not just a party shift Gov. Justice is attempting to make in the courts—it’s an ideological one.

Former Chief Justice Margaret Workman has a long history of support for progressive issues, which makes the appointment of Armstead and Jenkins an even bigger blow to reproductive justice. Workman worked to level the playing field in West Virginia, giving time and energy to legislation meant to aid those in need in a state where almost 18 percent of the population lives in poverty.

“[Workman has] been a champion not just for reproductive health but for children, families, and workers,” Pomponio said. “She has been an advocate for the most disadvantaged West Virginians.”

The possibility of a Supreme Court packed with people like Armstead and Jenkins rather than Workman will hurt abortion access in the state, one of seven states, as of January 2017, with just one abortion provider—Women’s Health Center of West Virginia. Additionally, the state maintains laws that operate to discourage people from abortion, including the requirement for anyone seeking an abortion to receive state-directed counseling, the enforcement of a 24-hour waiting period, and the requirement of parental consent for all minors seeking an abortion.

“The whole point is to dissuade folks,” Madonna said.

With anti-choice politicians in the state supreme court, Roe v. Wade could be threatened on a statewide level beyond these restrictions. Already, abortion is under attack in the state—again: as residents will have the opportunity, on November 6, to vote on Amendment 1, a constitutional amendment that would declare that abortion is not a constitutional right for West Virginians.

The law simply states, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”

That amendment, just 17 words, would overturn the 1993 case Women’s Health Center of WV, et al. v. Panepinto, et al. In that case, the court ruled that Medicaid could be used to fund abortions. The landmark decision—which Workman helped author—exemplifies reproductive justice that centers those in poverty.

West Virginians are not giving up. Since the introduction of Amendment 1, amid the Supreme Court fiasco, grassroots organizers have been mobilized, according to Pomponio. Along with WV Free Action Fund, Pomponio is part of a coalition dedicated to fighting the amendment and showing politicians that West Virginians support choice.

With so many changes up in the air—impeachment, potential new justices, and anti-abortion Amendment 1—there is no predicting the fate of abortion in West Virginia. “If the legislature were to pass restrictions on abortion, would [the West Virginia Supreme Court of Appeals] support it? I don’t know,” Madonna said. For now, residents must wait and see what happens during the coming impeachment trials. Walker’s trial is set for October 1, Workman’s October 15, Davis’ October 29, and suspended Justice Loughry’s on November 12.

According to Pomponio, if Amendment 1 were to pass, it would be the first time in over 100 years that the state has passed an amendment to the constitution to take away a right, something she believes is a backward step for West Virginia.

“We need more rights—not less,” Pomponio said.

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