West Virginia Governor Vetoes 20-Week Abortion Ban, But Legislature Will Likely Override

The bill echoes Arizona legislation struck down by a federal appeals court in 2013.


William Murphy/Flickr

On Tuesday morning, West Virginia Gov. Earl Ray Tomblin vetoed legislation that would have banned abortion after 20 weeks. "I am advised the bill is unconstitutional under controlling precedent of the Supreme Court of the United States because it prohibits the termination of certain pregnancies prior to viability," wrote Gov. Tomblin, a Democrat, in a letter to Republican Rep. Tim Armstead, speaker of the West Virginia House of Delegates. 

In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court held that states cannot ban abortion before the point of fetal viability (when the fetus could live outside the womb on its own), which is generally considered to be 24 weeks. 

The vetoed legislation, known as the "Pain-Capable Unborn Child Protection Act," was passed by the West Virginia Senate last week after clearing the House earlier in the year. It included exemptions for cases of medical emergency or fetal abnormalities, but not for pregnancies resulting from rape or incest.

A similar bill reached Gov. Tomblin's desk last year, also earning his veto. "At the start of the regular session, I urged members of the Legislature to consider a compromise that would help us establish legislation that would pass constitutional muster," said Tomblin in a statement. But "having received a substantially similar bill to the one vetoed last year on constitutional grounds," Tomblin said he must veto this year's bill as well. 

According to NARAL Pro-Choice America, Tomblin is the only state executive to veto a 20-week abortion ban, which now exist in a dozen states (Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Dakota, Oklahoma, and Texas) and are in the midst of consideration from the likes of Ohio and Virgina. But West Virginia legislators may yet override Tomblin's veto, which would require a simple majority vote of the two legislative bodies. The bill originally passed both with large majorities. 

West Virginia's bill echoes an Arizona bill struck down by the U.S. Court of Appeals for the Ninth Circuit in 2013. Anti-abortion advocates were hoping the U.S. Supreme Court would weigh in then, but it declined.

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  1. WV legislature can overturn a “veto” by simple majority in each house. I guess this issue will take over the rest of the session.

  2. West Virginia also leads the nation in circumcisions, is the home state of O.J. Mayo, and has a Pizzeria Uno in Huntington where I am reliably informed they serve deep dish pizza.


  3. 20 wks seems like a reasonable postmenstrual age. It gives mom plenty of time while protecting viable babies from errors in estimating gestational age.

    1. Sounds reasonable restriction on elective abortions to me.

      I’m assuming there is an exception if something seriously wrong with the fetus is detected.

      1. The concept of the 20 week ban was designed around preventing abortion in the case of profound birth defects. Very few such procedures are performed, and virtually all are because of horrific defects being detected.

    2. I’ve begun to consider that advances in modern medicine may either seriously complicate this hotbutton further, or solve it entirely.

      My son was born severely premature. He was 14cm and weighed 2lb, 7oz. He’s almost six now, and other than being abnormally intelligent and extremely flexible (the latter actually a side effect of prematurity. SCIENCE) he’s a “normal” kid. There was a boy in the next incubator over who was four weeks younger gestation at birth, right around 24 weeks, weighed a pound. Also left the hospital fine – took four months, but he did leave healthy.

      I’m not sure people realize how survivable even severe prematurity has become in recent years. Makes you wonder what they’ll be able to do in another ten years.

      1. If your son had died, would he have cared? I’m sure you would’ve cared, but would he?

        1. Do you care if you live or die?

          1. I care because I have plans for the future. Most conscious entities don’t. Most living things aren’t smart enough to have a concept of continuing life, so they aren’t disappointed by their own death.

        2. Provocative. So, are you wishing to have a fight about sentience now, or the potential of awareness and existence (afterlife) post-death? Your brevity left that unclear.

          Either one seems sort of silly, considering I was pondering how scientific advances might complicate or eliminate an issue. But if we must, I’d vote for squabbling about sentience, due to the much better potential for ironic amusements.

          1. During the Roe v Wade hearing, Marshall asked the Texas AG when the soul enters the body.

            I still think it was the best question asked that day.

          2. I think all our opinions about a lot of policies & other matters would change if we knew we’d be able to remember our lives after death, and we knew more about our awareness while dead. However, what I meant was that fetuses and almost all non-human animals aren’t apprehensive about impending death or the possibility of death, because they don’t understahd the concept. Since all value is subjective, future life can be of present value only to those things that are smart & knowledgeable enough to think about it. Killing something that places no value on its future life deprives that thing of no value, hence is not harmful to that thing.

      2. If Obamacare sticks around, it’ll probably take more like 30 years.

  4. If they’re pain-capable, why not just outlaw painful means of abortion?

    1. Because there’s no such thing as a pain-free late term abortion. Banning that is the same as banning all abortions after 20 weeks.

      2:25 if you’re unfamiliar with 2nd trimester abortions

      1. Jut because pain-free methods aren’t used by choice now, doesn’t mean they couldn’t be mandated. If we can slaughter meat humanely and operate on people & animals painlessly, I’m sure with some extra work fetuses can be killed humanely too.

      2. A fetus at that stage may show basic reactions to pain, but there is no conscious awareness.

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  6. Honestly, this kind of bill reduces a principled argument about “when life begins” to simple horse-trading over the number of weeks.

    Under current law, I think a bill at 24 weeks would be pretty bullet-proof, judicially. 20 weeks is perhaps too quick, today.

    If I were a lifer, I’d say take the deal at 24 weeks, get it on the books, and start ratcheting it down after hearings with neonatal specialists on how premature a baby they can save.

    1. It’s time to rewatch that abortion episode of Veep.

    2. I believe that couple in FL lied and their 19 week old lived.

    3. The prolife legislative strategy is *already* geared toward compromise. They already know better than to keep going down to noble defeat with “absolutist” laws, the way their opponents try to concern-troll them into doing.

      So I’m going to trust them on this 20-week deal.

      Anyway, if they passed a 24 week bill, it’s not as if Planned Parenthood, et. al. would say, “OK, that’s a reasonable compromise.” They’d take to the media with vein-pulsating fury, denouncing the bill as The Most Extremest Repressingest Law Ever, and ask the courts to strike it down.

      1. There cannot really be a compromise. If a 24 week bill was passed, there would immediately be pressure for “common-sense, reasonable restrictions” to bring it to 20 weeks, or 18 or whatever. People who want to ban stuff are never satisfied with compromise. So, the folks fighting the ban can just never relax their guard. Because banning sorts of people will never be happy until they have complete control. it does not matter if they are trying to ban books, offensive music, abortions, scary guns, or whatever. the tactics are the same.

        1. On the other hand, why not the same 12 weeks that’s good enough for France, Sweden, and many others? That won’t convert the die-hard 20% of abolitionists, sure, but it will pick off a hell of a lot of average citizens. Suddenly you’ve got 70% or better consensus, because far fewer people will ever be as squeamish about 12 weeks as they very sensibly might for 24.

    4. And why is viability with medical intervention a reasonable criterion for abortion? I mean, by that reasoning, we could simply require all abortions to be cesareans and then see who lives.

  7. There have been advances in viability in the last 2 years. Probably not 4 weeks worth, but they could probable get to 22.

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  9. Someday people will realize that the real legacy of Roe was the needless division caused by this crazy 20-24 week standard. France, Sweden, virtually all the PC feminist Western European abortion regimes actually set the limit at 12 weeks (with obvious humane and medical exceptions available). 12 weeks! Google it! This has led to the same situation we would have here with similarly sensible laws: the death of controversy. Yes, there will always be a small minority who believe any abortion is wrong, and I suppose it’s possible there’s some minority who believes they have a God-given right to change their mind for any reason even at 24 weeks. But I think most people can see that viability is a continuum and tend to feel that early-term abortion is a completely different moral proposition from late-term. (I’m pro-choice, but if 20 weeks doesn’t make you at least a little squeamish, let it kick for you before it goes; I mean, Christ.) A 12-week rule here, if there only some way to get it around Roe on the one hand and pro-life delays and roadblocks on the other, could lead — sooner than you might think — to a 70-75 % abortion consensus.

    Of course, that would mean absolute abolition would become completely impossible (instead of practically impossible, which it already is) and the Democratic party would have to give up a huge source of scare-tactic fundraising . . . and that, I suppose, is dispositive. Too bad.

    1. Three entire issue is stupid, given that unwanted pregnancies should simply be rare, women can perform abortions easily within the first 12 weeks, and almost all abortions are performed early.

      But as a matter of principle, I think it is wrong for government to regulate abortions. A fetus is not a person and should nor be recognized as such. Even if a fetus were a person, it wouldn’t have a right to the mother’s womb. And while I consider abortion to be morally wrong, it is not the job of government to impose moral choices as law.

      And pointing to Europe is really a lousy argument for libertarians. The European laws are the result of massive corruption of politics by churches and likely do not represent the will of the people.

      1. One doesn’t point to Europe as a moral precedent or to commend their process, but to point out that even Europe has arrived at a more sensible compromise than we have, resulting in almost all abortions being performed in the first 12 weeks and no continuing political war-to-the-knife over the right to do so. It’s a lot more sensible and libertarian than appealing to “the will of the people,” which is just as likely to be authoritarian than not, on any subject.

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