Lawmakers Override Governor's Veto on 'Dismemberment Abortion' Ban

The ban makes it illegal for West Virginia doctors to perform "dilation & extraction" surgery, the most common and safest method for second-trimester abortions.


Jack Zalium/Flickr

In West Virginia, Gov. Earl Ray Tomblin (D) and state lawmakers are once again arguing about abortion. On Tuesday, Tomblin vetoed legislation that would ban the safest and most commonly used second-trimester abortion method, saying such a ban "unduly burdens a woman's fundamental constitutional right to privacy."

Constitutional concerns on Tomblin's part aren't unfounded, as courts in Kansas and Oklahoma have already blocked similar bans passed by those states. Opponents of the bans say there is no medical reason to stop using this procedure and it would in fact force women seeking abortions to go through a riskier and more invasive surgery. 

Previously, Gov. Tomblin has vetoed an attempt—twice—to make abortion illegal in West Virginia at 20 weeks pregnancy, citing concerns for its impact on women's health and safety as well as the constitutionality of the bill. Kelly Baden, director of state advocacy for the Center for Reproductive Rights—the group currently challenging a Texas abortion law before the U.S. Supreme Court—applauded the Democratic governor for once again breaking out his veto pen. "For the third time in two years, Govenor Tomblin has rightly vetoed a measure which robs women of safe options when they've made the decision to end a pregnancy," Baden said. 

But the pro-choice victory was short-lived. On Thursday, West Virginia lawmakers voted to override Tomblin's veto. "Many Democrats sided with the Republican majority in favor of the override, which required a simple majority vote from the House and the Senate," The New York Times reports. 

The ban, slated to take effect in May, makes it illegal for doctors to perform abortions using the "dilation and extraction" (D&E) method, which the anti-abortion crowd has rechristened as "dismemberment abortion." The vast majority of second-trimester abortions in the U.S. involve a D&E surgery, and it's also commonly used for women who have miscarried but not expelled the fetus.

Last year, Kansas became the first state to ban the procedure; that law was challenged by The Center for Reproductive Rights, temporarily blocked by a state court, a decision that was upheld by an appeals court in January. But because the court was split evenly on that decision, the ruling must now be reviewed by the Kansas Supreme Court. 

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  1. Do any fetuses survive second trimester non-D&E abortions? With medical technology now viability extends back to the second trimester, no? Is that part of the equation on both sides? What we’re trying to prevent/protect?

    1. Consider it this way, while West Virginia allows deer hunting it also sets some standards for method of take. It does not allow those deer to be torn apart limb from limb while still alive.

      That ENB euphemizes this as ‘safe’ only begs the question.

      She doesn’t want anyone affording a fetus the sorts of considerations that we extend to game or laboratory animals – slippery slopes and all that.

      1. And even if you oppose abortion (or even just a particular method of abortion) you should be careful to not misrepresent what is happening, willfully or not.

        “leaving only the head still inside the uterus. An incision is made at the base of the skull, a blunt dissector (such as a Kelly clamp) is inserted into the incision and opened to widen the opening,[4] and then a suction catheter is inserted into the opening. The brain is suctioned out, which causes the skull to collapse and allows the fetus to pass more easily through the cervix.” (Wikipedia)

        Is certainly unpleasant, even horrifying, being torn apart limb from limb while alive it ain’t. Its more akin to shooting a deer to death and then dismembering its corpse. Which is what hunters do.

        1. While neither one is a great analogy, sucking the brain out certainly seems closer to the limb-from-limb scenario.

          1. I’d say it was closer to being shot in the head. Pretty close to instantaneous death. The rest, gruesome as it is, isn’t even butchery – depending on exactly when its done – D & E shouldn’t result in dismemberment at all, but if it does, the child is *already* dead and can’t be harmed any further.

          2. Yeah, brain sucking is sooo much different. Besides the pain only lasts for the rest of your life.

        2. Perhaps a state should go ahead and establish this as their new death penalty procedure since the Feds are make it deliberately difficult for them to obtain the drugs used in lethal injections.

          See if it passes the “cruel and unusual” test.

      2. Can you cite any circumstances in which a woman might have a live game animal lodged within her body? If not, I don’t see the relevance.

        1. The relevance for his point is that even if you can kill it, that doesn’t mean you have to do so in an exceptionally gruesome manner.

        2. Agammamon|3.11.16 @ 8:47AM|#

          Artisanal deep dish pizza with pepperoni made from the foreskins of late term aborted fetuses?

          Define game animal.

        3. Willful blindness can do that.

      3. What if the deer were anesthetized?

    2. Earliest baby was 21 weeks 5 days in 1987, according to Guinness, and he’s healthy today. I doubt we’ll ever be able to go earlier than 20 weeks, unless we manage to grow fully-functioning uteri outside of the body, which is likely at least a century away.

      1. If the will was there, artificial wombs could be developed in five years.

        1. Medical science has been trying to create artificial blood since the Vietnam war. So far they have failed. Human physiology is not easy to replicate.

          1. I said,an artificial womb, not artificial blood. You’d have men and women lining up around the block to donate blood and other fluids for use with the artificial womb.

            1. For that matter, they could use the wombs the same way they use kidneys or hearts or eyes from organ donors.

              1. Keeping an organ alive outside a human is not currently available. That’s why timing is so critical in organ harvest.

            2. You missed my point. If you can’t make artificial blood, I doubt making an artificial organ is going to be simple. Also, we already of chronic blood shortages. I don’t see how increasing the demand for blood during a shortage is going to help.

              1. We make plenty of artificial organs that interact with internal human systems. I don’t think it’s too much of a stretch to think we can make one that interacts with external systems, much the way artificial organs needed to do prior to them being tried on living subjects.

                Maybe it’s wishful thinking on my part though.

                Plus, they always say we’re suffering chronic blood shortages. I’m thinking there’s a Ckicken Little analogy to be made here.

                1. I can’t think of many artificial organs besides artificial hearts, heart/lung machines and kidney dialysis. And those are all relatively simple, mechanical things. A womb is far more complicate, I think.

                  Then there is sort of a chicken/egg problem developing an artificial womb. All of the people who protest any experimentation involving human embryos will fight it (not sure if you are in that camp, but it seems like you might be). Research could be done with animal models, but there has to be a first human test and there is bound to be a good chance of it not going perfectly.

                  An artificial womb would be great, but I’d bet you will see a lot of resistance both from pro-life folk and from the sorts of people who oppose all kinds of bio-engineering.

    3. Is that part of the equation on both sides?

      No. This debate has no rationality or consistency. When was the last time you saw the courts overturn any other medical restrictions, drug laws, or even any restriction transaction between 2* people based on a “fundamental constitutional right of privacy”? And how many pro-lifers are actually consistent about no exceptions for rape or incest?

      *for the sake of argument

      1. Well, it does for those of us who would like to see the courts overturn all kinds of laws that invade people’s privacy and personal business.

        But, yeah, for the most part it’s just assholes yelling at each other trying to do whatever they can get away with.

      2. The rape or incest exception seems more like pandering than anything. It’s not logical.

        1. Yeah, the only one that’s got a valid logical exception is life-of-the-mother.

        2. Incest, I don’t see as being logically consistent.

          Rape, on the other hand, has a potential basis. If you regard pregnancy as a foreseeable risk that the mother takes on whenever she has sex, then you can say she has voluntarily taken responsibility for the fetus and shouldn’t terminate it for convenience.

          It doesn’t line up with the personhood basis for banning or restricting pregnancy, but its not totally irrational, either.

          1. But if you consider abortion murder, then it’s still murder. Fetus didn’t do anything wrong.

          2. I think people who are against *most* abortions get more credit than people who are PERFECTLY CONSISTENT and want to legalize all abortions.

            There are people with perfectly sound prolife instincts who let their emotions get to them on the subject of children conceived in rape or incest. Such people, regrettably, are comfortable with killing a child for the sins of his or her father. I wish they didn’t make that exception, which isn’t rationally justifiable.

            But I’d rather have someone who is on the right side the vast majority of the time, even if he wimps out on some points, than someone who is not only a consistent supporter of all abortions, but spews contempt for anyone who fails to mirror their bloodthirsty purity.

            1. Such people, regrettably, are comfortable with killing a child for the sins of his or her father.

              (Exodus 20:5) You shall not worship them or serve them; for I, the Lord your God, am a jealous God, visiting the iniquity of the fathers on the children, on the third and the fourth generations of those who hate Me,

              (Deuteronomy 5:9) You shall not worship them or serve them; for I, the Lord your God, am a jealous God, visiting the iniquity of the fathers on the children, and on the third and the fourth generations of those who hate Me,

              (Exodus 34:6-7) Then the Lord passed by in front of him and proclaimed, “The Lord, the Lord God, compassionate and gracious, slow to anger, and abounding in loving kindness and truth; who keeps loving kindness for thousands, who forgives iniquity, transgression and sin; yet He will by no means leave the guilty unpunished, visiting the iniquity of fathers on the children and on the grandchildren to the third and fourth generations.”

              Sorry for being the asshole to bring the Bible into this. I’m just curious.

              1. I’m suggesting that we shouldn’t be playing God.

                1. Then maybe you can also say, “Such a deity, regrettably, is comfortable with killing a child for the sins of his or her father.”

          3. Being against abortion in all cases except rape can be perfectly rational along the lines you said, which is Judith Thomson’s kidnapped violinist example. Since in rape, there is no voluntary acceptance of the consequences of sex (pregnancy), then there should be no obligation to sacrifice oneself to bring the zygote/embryo/fetus to term. Just like a person who is kidnapped and hooked up to a dying violinist has no obligation to remain hooked up to the violinist for 9 months.

            1. Abortion isn’t unplugging the violinist. It’s shooting or poisoning him, then unplugging him.

              1. Based on your objection, simply unhooking the violinist, which leads to his death, is apparently acceptable then.

                In that case, you would be fine with an abortion in the case of rape that cut the chord, waited for the embryo/fetus to die and then took it out of the uterus. That’s a bit roundabout I suppose, but it is more consistent.

            2. I came here to say this, but Eric already said it better than I can.

              The argument has been made that if the entire planet were living inside your body, and we accept self ownership as a right, then you would have to right to remove the entire planet even if it led to their death.

              If however, your actions were responsible for the entire planet being there, then the onus is on your to provide for it or else you’re responsible for everyone’s death. You can’t place them there, and then decide to remove them, leading to their death, and not be guilty.

              The argument is that it’s the same with a fetus, hence why the rape scenario actually makes sense as an exception.

              Really though it’s just a damn Red Herring. People who bring it up typically still want all abortion legal even if you concede that one issue. They’re not conversing in good faith, typically.

              1. I want abortion to be legal in more cases than only rape (and the life of the mother). I think it’s fine for people to specifically talk about cases of rape because it’s a situation where pro-lifers (especially libertarians) can much more easily be persuaded to agree with the justification for it. I wouldn’t call it a red herring, since it’s an important sub-element of the issue of abortion. I think it’s good for people to think victims of rape should be able to get abortions rather than thinking victims of rape shouldn’t get abortions.

                I was pro-life (only acceptable if it compromises the health of the mother) for a long time even after I rejected Christianity. I changed my mind about cases of rape based on the violinist thought experiment.

                I’ve talked about this long enough for today, so I don’t think I’ll post anymore.

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  2. Previously, Gov. Tomblin has vetoed an attempt?twice?to make abortion illegal in West Virginia at 20 weeks pregnancy,

    Looks like we finally found something leftists don’t want us to be more like Europeans on.

    1. According to all the available data, 20 weeks is the compromise point where you get maximum public support in the United States for a cut-off. That gives several months (depending on when the pregnancy is decected) to decide, and the earlier the operation is performed, the safer it is for the mother. (the child, on the other hand, usually doesn’t stand a chance). The closer you get to 40 weeks, the fewer people are in favor of permitting abortions. Likewise, the closer you get to 0 weeks, the fewer people are in favor of a ban.

      I recognize that my personal 0 week stance is not shared by that many people, and that is politically unrealistic in this environment. I don’t regard those who support abortion of a non-viable fetus as terrible people. I only react that way to people who regard 38-40 weeks as a-okay to abort.

      But, given the vitriol this topic raises in this commentariat, I’m going to bow out of this discussion now.

      1. But, given the vitriol this topic raises in this commentariat, I’m going to bow out of this discussion now.


        I will emulate UCS.

      2. DEEP DISH!

        Gotcha bitch!

        1. No! I didn’t duck out soon enough.

        2. I’m going to Chicago in July…

        3. Artisanal deep dish pizza with pepperoni made from the foreskins of late term aborted fetuses?

          1. DEEP DISH IS NOT PIZZA!!11!!!!!

          2. Is for the peasants!

            Gluten-free, Non-GMO, grass-fed, late-term, free-range foreskin pepperoni or you might as well be dining on plain old medical waste.

      3. And I – I’m not exactly *pro* abortion, just not absolutely opposed – have always considered the 20ish week mark a ways on the far side of acceptable.

        I’m a first trimester (12 weeks) sort of guy for straight elective abortions and am OK with allowing stricter control of 2nd trimester abortions in a far more limited set of circumstances.

        I’ve always considered abortion opponents . . . honorable. While I don’t agree with that position – we have different priors – I’d be far more willing to tolerate/support an increased restriction than a loosening of the current standards.

        But only when those proposing those restrictions are honest about why. Admitting privileges, outlawing D & E – these guys are hiding under a cover of ‘for public safety’ regulation since they can’t get their preferred policies in through the front door.

        1. Viability occurs roughly at the end of the second trimester. I could go with restrictions on third trimester abortions, although that’s a pretty conservative definition of “viable”.

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  3. Good job Team Red, just charge Hill Alpha harder and I promise you won’t die on it this time.

    Speaking of suicidal hill charging, I noticed most of Team Blue has gotten pretty shut-Uppy about gun control

    1. As stated above, bans on abortion starting around week 20 are actually fairly supported around the country (though you wouldn’t know that from the general tone of the reporting on them).

      1. Right? Remember when Scott Walker said he didn’t like everything about the ban that he signed off on but acknowledged that it was exceedingly popular and Reason’s own Ron Bailey scienced the shit out of him?

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  4. What a surprise, I make it back to HnR for the first time in a couple of weeks and the first article is ENB on abortion. And without alt-text!

    1. And you promptly make a fool of yourself by double-posting.

      Way to fucking go!

      1. I think the squirrels just have a crush on ENB.

    2. How was the race???

      1. It was a bit warmer than I expected. Or at least felt that way. It was only like 65, but compared to the 25-30 I was training in that’s still pretty hot so I didn’t hydrate well enough. Easy course though, and I thought the race was well managed. I finished in 2:24, which was slower than I was hoping for due to the previously mentioned hydration issues. All together a good time, and I think I’ll do it with that same group again next year.

        1. Ah, yeah, that’s a huge temp difference. I hadn’t thought about that when I heard you were doing it, but that would be pretty rough. Ideal racing temps are like…40-50 so 65 actually is sort of warm even from an objective perspective. So glad to hear you had a good time!

    3. I came back just to comment here.

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  5. What a surprise, I make it back to HnR for the first time in a couple of weeks and the first article is ENB on abortion. And without alt-text!

  6. *Slap!*
    Oh…(looks at article), wrong room.

    1. Nice.


  7. Dammit ENB, just apply to slate, or vox, or hell even buzzfeed already.

    In libertarianism a case can be made both for and against abortion. In progressivism abortion is a sacrament. All your abortion coverage fits the more “religious” model….

    1. sorry, you’re stuck with me

      1. quite possibly the first time a libertarian woman has uttered those words

        (Yeah yeah TIWTANLW)

    2. In progressivism abortion is a sacrament.

      There are plenty of progressive Catholics who oppose abortion. Abortion is something everyone can fight about.

      I’m curious, what in this post seems “religious” to you? While ENB isn’t hiding her views on the subject, the article seems like pretty straight reporting.

      1. I took the term “religious” (in quotes) to be euphemistic for the religion of progressivism.

        I don’t share JWW’s take on this particular topic/article, but frequently and repeatedly find ENB to be (e.g.) defending women who’ve drowned their own children, impugning public servants who are serving the public that is asking for their service (and doing so as light-handedly as possible), impugning people at large for having a difference of opinion about personal or hypothetical topics that have no bearing on policy or libertarianism, and advocating women’s agency/rights in some situations where the core of the issue isn’t exactly women’s rights or women’s rights, if applied to the situation as suggested, would trump everyone’s rights.

        Which, being clear, I’m not saying she can’t have these ideas or shouldn’t share them but that espousing them on Reason isn’t very libertarian.

    3. I’m pretty far into the Pro Life camp, but since a libertarian case can be made both for or against abortion, ENB’s position is perfectly libertarian.

      Sometimes I wish they’d have a pro-life libertarian on staff, but that doesn’t mean her coverage shouldn’t be her choice (pun intended).

      1. Sometimes I wish they’d have a pro-life libertarian on staff

        They’ve got Stephanie Slade.

      2. Its within the range of libertarian opinion.

        Now, if we start carping about the lack of state funding for abortion . . . .

    4. In libertarianism a case can be made both for and against abortion. In progressivism abortion is a sacrament. All your abortion coverage fits the more “religious” model….

      I don’t mind the abortion coverage as much I mind the fact that she wears a thin veil of libertarianism on *some* women’s rights issues and everything else is ‘look at those idiots in flyover country’ and/or ‘why can’t we all be more sensibly urbane (like DC)’? Any given city or even large municipality churns out stories of *systemic* corruption, cronyism, protectionism, state overreach, etc. regularly but podunk county attorney convicts criminal of crime and local police arrest, show leniency, to solicitous girl for soliciting prostitution is top of the heap to ENB.

      I’m certainly not saying there aren’t stories of corruption or overreach to be covered in flyover country (Soave and others cover plenty of arrests for being in the presence of an officer) but ENB seems to consistently pick/get stories and then defend the positions that are indefensible except from the most libertine, anti-social, or pro-socialist of positions and frame it as *the* reasonable (drink) position. The exact sort of political-story framework I see at Slate, Vox, etc.

  8. ENB seems to equate “dilation and extraction” for miscarriage to the same procedure for abortion. In the former, the fetus is already dead, but in the later it may still be alive (she didn’t say). If the fetus is still alive, then this is a gruesome procedure similar to drawing and quartering traitors.

    If my understanding is correct, then the “right to abortion” in the second trimester (which ends very close to the current age of viability) trumps what might be the right to a humane death for the fetus. Are we really so barbaric that we dismember a live fetus to spare the mother another trimester of pregnancy?

    1. Seems like you could avoid that problem by somehow anesthetizing the fetus.

      I also wonder what the alternatives to D&E would be and if they are less icky.

      I don’t think the drawing and quartering comparison is very good. D&E usually starts with sucking the brain out, which I assume leads to a pretty quick loss of any conscious sensation that may exist in a fetus. D&Q on the other hand is deliberately prolonged torture.

      1. Seems like you could avoid that problem by somehow anesthetizing the fetus.

        If you have to anesthetize the fetus, it sure seems like the fetus feels pain, and it matters that the fetus feels pain, and maybe that means D & C shouldn’t be done at that point in the pregnancy.

        1. I have no idea what the fetus feels. I was just responding to the concern that maybe it does.

          I don’t really think that feeling pain is a good way to determine whether it’s OK or not anyway. Lots of things feel pain that most of us have no problem killing. Pain is a pretty low-level thing that some relatively simple animals share.

          1. Sure, but its the next step, that it matters that the fetus feels pain and should be anesthetized, that seems odd.

            “Oh, we don’t want it to feel pain. We just want it dead.” I dunno. Smells like congitive dissonance to me, but maybe not.

            1. Some people worry about whether lobsters feel pain when you put them in the pot.

  9. In libertarianism a case can be made both for and against abortion.


  10. I appreciate the concession that this particular abortion procedure is “the safest and most commonly used second-trimester abortion method.” She’s not claiming that its some made-up or rare procedure which lawmakers are trying to demonize. So it represents abortion *at its best.*

    So here then, take a look at the best abortion has to offer:

    ” “Dismemberment abortion” means, with the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body to cut or rip it off.”

  11. And there was some hint above that the West Virginia prolifers aren’t being up-front about their motives.

    Allow me to quote from the Platform of the West Virginia Republican Party:

    “B. We believe that any unborn child has a fundamental, individual right to life that begins at conception, and must be protected. We oppose infanticide and adamantly support the ban on partial birth abortion.

    “C. We vigorously oppose any use of public funds for abortion. We commend the efforts of those individuals and religious or private organizations that are providing alternatives to abortion.

    “D. We reaffirm our support for the election and appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”

  12. And this in a blue state.

    Imagine that.

    1. West Virginia is hardly the blue state archetype.

      1. Yeah, they are a bit more of the old school Democrat.

  13. Considering the actual procedure for this abortion, the question of when life begins obviously is quite the non-issue. It is crystal clear that a human life has already begun long before.

  14. I see nothing wrong with a state banning abortion after the first trimester of pregnancy. Women who choose abortion when it is not medically necessary should get their abortions early. Those who don’t choose to get their abortions early should be regarded as having voluntarily committed themselves.

    A fetus is not an invader. Its presence in the womb is normally the result of voluntary actions on her part. Just as one cannot throw an in invited guest out of his home during a thunderstorm as long as the guest obeys pre-defined rules, an expectant mother should not be able to expel a fetus once it starts developing a conscious mind.

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