On Friday, the West Virginia legislature voted to override their governor’s recent veto of a 20-week abortion ban, ensuring that the restriction will become law. Cloaked in the language of “fetal pain,” this particular policy continues to gain momentum; West Virginia will join the 10 other states that currently ban abortions after this point.
An identical 20-week ban made its way to the governor’s desk last year. Gov. Earl Ray Tomblin (D) has vetoed the legislation both times, saying that it unconstitutionally restricts access to abortion and will not survive a court challenge.
But after the most recent midterm elections, Republicans picked up more seats in West Virginia. Since state law allows the legislature to override governor’s vetoes with a simple majority during the regular session, there were enough votes this year to push through the 20-week abortion ban.
The abortion clinics in West Virginia do not perform procedures past 20 weeks of pregnancy, so the handful of women who have later abortions there are typically dealing with emergency pregnancy situations in hospitals.
“With this action today, the politicians behind this law have revealed how far they are willing to go to advance their ideological agenda at the expense of women’s rights, lives, and safety. They should be ashamed,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement.
According to the State Journal, this marks the first time that the legislature has voted to override a governor’s veto since 1987. Polling conducted last year found that the measure was actually fairly unpopular with voters, who didn’t want their lawmakers to spend time focusing on passing more abortion restrictions.
It’s not uncommon for conservative legislatures to circumvent their governors in order to impose harsh abortion restrictions. Last year, Missouri lawmakers overrode a veto to enact a 72-hour abortion waiting period. During the 2013 session, the Arkansas legislature overrode two different vetoes to enact 20-week and 12-week abortion bans. New Hampshire lawmakers also used this tactic to enact a ban on later abortion procedures in 2012.
Over the past several years, courts have blocked at least three 20-week abortion bans for violating the protections under Roe v. Wade, which guarantees the right to legal abortion services until the point of viability. While there’s no scientific definition of viability, it typically occurs closer to 24 weeks of pregnancy.
Nonetheless, West Virginia’s attorney general has already pledged to defend the new law if reproductive rights advocates file a legal challenge against it. “It is long past time that limits are placed on abortions in West Virginia,” Attorney General Patrick Morrisey said in a statement. “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.”
Abortion opponents believe they have found a winning strategy in 20-week abortion bans, which are framed around the scientifically disputed notion that fetuses can feel pain after that point. There’s no evidence that fetuses can experience pain before viability. But bans on later abortions tend to be more popular with the American public because it’s easier to stoke emotional outrage about those procedures.
Because some 20-week bans have been allowed to stand on the state level, this policy essentially provides an avenue to incrementally chip away at Roe v. Wade. And in addition to the states that have enacted this restriction, members of Congress have repeatedly attempted to advance a national 20-week ban.
Proponents of reproductive rights point out than banning abortions after 20 weeks ends up hurting women in desperate situations. Later abortions are already very rare, and the women who seek them usually fall into one of two categories. Sometimes, women discover serious fetal health issues that weren’t evident earlier, and choose to end the pregnancy to prevent their unborn child from suffering. Other times, low-income women are forced to delay abortion until that point because it takes them that long to save up the money for it.