Bi-Partisan WV Majority Overrides Gov’s Veto of Pain-Capable Bill

By Karen Cross, National Right to Life Political Director

Editor’s note. This story appeared in the April online issue of National Right to Life News at The next online edition of the “pro-life newspaper of record” will appear in early May.

These women are some of the WV Delegates who voted in favor of WV's Pain-Capable Unborn Child Protection Act.

These women are some of the WV Delegates who voted in favor of WV’s Pain-Capable Unborn Child Protection Act.

What an honor and a privilege it was when my bosses at National Right to Life allowed me to travel to the state capitol to work with West Virginians for Life (WVFL) to pass a Pain-Capable Unborn Child Protection Act.

That glorious triumph took place March 6. I would like to talk about how this override of the governor’s veto came to pass–and what it signifies.

First and foremost is what The West Virginia Pain-Capable Unborn Child Protection Act will do. It will protect unborn children from 20 weeks fetal age, based on legislative findings that there is compelling evidence that an unborn child by that point (if not earlier) is capable of experiencing excruciating pain during the process of dismemberment or other abortion procedures.See “Bi-Partisan,” page 21

As the former executive director for West Virginians for Life, I am very familiar with West Virginia’s legislative process. However, after working at National Right to Life in D.C. for ten years I knew I needed to spend time getting to know the new legislators. This year, there were an incredible number of freshmen coming in as well, so they need special attention to understand the legislative process as it pertains to prolife legislation, which is often treated differently by hostile pro-abortion colleagues and by a biased media.

Before the start of West Virginia’s 82nd Legislative Session, John Carey, WVFL’s legislative coordinator; Dr. Wanda Franz, WVFL’s president; and I met with a team of leaders from both Houses to discuss the Pain-Capable Unborn Child Protection Act. Leadership in both houses are truly pro-life, and were anxious to pass this lifesaving legislation.

The legislation is based on a National Right to Life model bill that has passed in ten other states and currently is in effect in eight states across the country: Alabama, Arkansas, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma, and Texas. West Virginia’s Pain-Capable Bi-Partisan WV Majority Overrides Gov’s Veto of Pain-Capable Bill From page 1 Unborn Child Protection Act, HB 2568, sponsored by Republican and Democrat delegates: Sobonya, Arvon, Kessinger, Rowan, Summers, Border, Blair, Espinosa, Waxman, Moye and Eldridge, was introduced on February 3.

It was double-referenced to Health, then Judiciary Committees. Guiding legislators through the committee process is challenging, and yet rewarding as relationships are nurtured and trust is built. Surviving the committee meetings and hearings which, when pro-life legislation is on the agenda, can be grueling and last four or five hours, often leads to more camaraderie – as if we’ve been in battle together, and it is great “practice” preparing legislators for the floor votes.

In the Health Committee hearing, and later in the session for the Senate Judiciary Committee, Doctor Mike Rollins, an obstetriciangynecologist, and Jennifer Popik, J.D., legal counsel for National Right to Life’s Robert Powell Center for Medical Ethics, testified in favor of the legislation.

Popik explained, “Medical science provides substantial compelling evidence that unborn children experience pain as early as 20 weeks, if not earlier. They even require anesthesia for fetal surgery.” Regarding constitutionality of the legislation, Popik added, “The Pain-Capable laws are considered a case of first impression in the courts, which means this issue has never been presented to the court before. The question of whether the state has an interest in protecting the lives of paincapable unborn children is one that we would welcome however it has not yet reached the U.S. Supreme Court where we believe we would be victorious.”

Following the hearing, prolife delegates rejected a number of hostile amendments to HB 2568 in both committees, and voted overwhelmingly to send it to the floor for a vote for passage.

By February 11, 2015, the day hundreds of pro-life West Virginians were at the Capitol for West Virginians for Life’s Pro-Life Rally and Day at the Legislature, the Pain-Capable Unborn Child Protection Act was through the committee process. It had been read a first and second time on the floor where pro-life legislators had held off three hostile amendments that would have rendered the bill meaningless.

It was time for passage in the state House. An overwhelmingly bi-partisan majority passed the legislation 87-12, with one not voting. Pro-life Delegate Ron Walters registered his “yes” vote the next day, making final passage in the House 88-12. Now the bill had to be sent to the state Senate, where the process was started all over again. Passing legislation, especially pro-life legislation, is a very tedious process and requires patience, perseverance and lots of prayer.

On February 12, the Senate received HB 2568. It was taken up in the Senate Judiciary Committee on February 20, where pro-life legislators rejected unfriendly amendments and sent the bill to the floor with a recommendation that it “do pass.” On February 25, after weakening amendments were rejected on the floor, HB 2568 passed the state Senate, 29-5, with a minor change, which meant the House had to vote to concur with the Senate change.

Finally, on March 2, the Pain-Capable Unborn Child Protection Act was sent to Governor Earl Ray Tomblin for his consideration. Many legislators believed the Governor would not veto the legislation a second year in a row, especially after it passed with such bi-partisan majorities in both Houses.

Despite the fact that more than two-thirds of the Democrats voted for passage, Governor Tomblin vetoed the bill, which meant that both Houses had to override his veto.

Following the veto, West Virginia Attorney General Patrick Morrisey said, “I am disappointed with the Governor’s decision to veto the pain-capable legislation for the second year in a row and urge the Legislature to override it.

It is long-past time that limits are placed on abortions in West Virginia. Currently West Virginia law does not limit how late an abortion can occur. While no one can predict with certainty how a court will rule, I believe that there are strong, good-faith arguments that this legislation is constitutional and should be upheld by the courts.

If the Legislature overrides this veto and the law is challenged, I will defend it in court.” On March 4, the House voted to override his veto, 77 to 16, with 7 not voting. On March 6, the Senate voted to override, 27 to 5, with 2 not voting. The overwhelming override of the governor’s veto, which was the first veto override in nearly three decades, reflects the will of pro-life West Virginians who worked so hard to elect legislators who will stand for life.

Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee and author of the model legislation, worked closely with us as we maneuvered through the legislative process.

Following final passage, Balch said, “States have a compelling interest in protecting the lives of unborn children who are capable of feeling pain from abortion. West Virginia becomes the eleventh state to recognize this obligation by enacting the Pain-Capable Unborn Child Protection Act.”

“We commend the members of the legislature who supported this bill for their courage and compassion by adding their voices in favor of protecting pain-capable unborn children who are unable to speak for themselves,” added Balch. “We condemn Governor Tomblin for his cowardice and indifference toward the innocent, unborn child who is capable of great suffering from the violence of abortion.”

As I hope this article conveys, I find the legislative process fascinating, and especially love to work directly with legislators: educating and communicating the pro-life message to them, so that they can pass strong prolife protective laws for unborn children and their mamas.

Thanks to the many pro-life West Virginians who worked for this law, when HB 2568 goes into effect (90 days from passage), West Virginia will be a safer place for pain-capable unborn children and a better place for all those who value human life.”

Look for updates in future National Right to Life News and National Right to Life News Today.