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Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

How A Pro-Life Ballot Amendment Threatens Democrats’ Senate Chances In West Virginia


It was a sunny, breezy August afternoon—perfect county-fair weather. At the fairgrounds in Jefferson County, West Virginia, families made their way through exhibits of livestock, produce, and crafts, finally meandering toward the dirt track for the evening’s demolition derby.

As fairgoers trickled past the commercial booths, they were greeted by a slim, dark-haired woman handing out balloons to children and leaflets to their parents. “Have you heard about Amendment 1?” she’d begin. “It’s a constitutional amendment on the ballot this November.”

For those who stopped to listen, she’d explain: In 1993, West Virginia’s Democrat-controlled legislature passed a bill prohibiting state funding for elective abortions. The law was immediately challenged in court. In Women’s Health Center of West Virginia v. Panepinto, the state Supreme Court ruled that the West Virginia Constitution both secures the right to an abortion, and requires the state to fund it. Since then, deep-red West Virginia has been forced to fund elective abortions with tax dollars. The state has spent roughly $10 million on 35,000 abortions over the years.

Amendment 1, passed by the legislature in March and now up for approval by voters in November, would amend the West Virginia Constitution, rendering it neutral on abortion and invalidating Panepinto. Legislators modeled their effort after a similar measure in Tennessee, which voters approved in 2014. The amendment’s text is simple: “Nothing in this Constitution secures or protects the right to an abortion or requires the funding of abortion.”

State Sen. Patricia Rucker—the slender woman working the fair booth—was Amendment 1’s lead sponsor. “Right now, the only effect of this amendment would be to end state funding for elective abortion,” Rucker says. The 1993 law would once again be in force, requiring the state to fund abortions only in the case of severe maternal health issues, severe fetal deformity, rape, or incest.

“In general,” Rucker says, “the amendment makes it clear that the right to abortion isn’t in our state constitution. It’s returning control over this issue to the people’s representatives: the legislature. Which is where it belongs.”

Hooded Cloaks and Dirty Tactics

Of course, some want to see judges, not legislators, making abortion law. During floor debate, pro-abortion activists arrived at the state capitol to oppose Amendment 1, wearing “Handmaid’s Tale” cloaks and carrying crude signs. Rucker and her allies pressed forward, and the effort in the House of Delegates was led by another conservative woman, Delegate Kayla Kessinger. “Unfortunately, a lot of men hesitate to stand up for this,” Rucker admitted. “They don’t want to be labeled as telling women what to do. We have put men in this position where they’re afraid.”

For her crimes as a pro-life woman, Rucker felt her opponents’ wrath. “I definitely got a lot of hate mail,” she says. “All of us who voted for the measure were harassed. We had coat hangers with red paint left in our offices. But I also had threatening messages left on my phone—threats of physical violence. As far as I know, that didn’t happen to any of the other legislators. It was just directed against me.”

The dirty tactics extended even to impersonation. “The night before the vote on [Amendment 1], we sent out an email to legislators, reminding them to vote ‘yes,’” says Mary Anne Buchanan of West Virginians for Life. “That same night, someone sent an email to legislators from a bogus address, pretending to be our president, Wanda Franz, and telling them to vote ‘no.’ Thankfully our legislators caught on, but it just shows to what great lengths the other side is willing to go.”

As the battleground now shifts to the electorate, Amendment 1 opponents are busy telling women that their “right to make deeply personal health care decisions” is at risk, giving the clear impression that abortion will be banned rather than simply defunded. Another talking point is that “women will die”—despite the fact that state code clearly allows tax funding of an abortion to save a mother’s life.

“The radical abortionist lobby will stop at nothing to try to deceive people into thinking that Amendment 1 is something different than what it is,” says state Attorney General Patrick Morrisey, a pro-life Republican. “We have to let people know that this is an amendment that really, purely focuses on taxpayer funding of abortion in West Virginia. There are a lot of people saying, ‘There is no taxpayer funding [of abortion].’ That’s incorrect.”

As West Virginia pro-lifers work to rally their voters, Karen Cross, political director at the National Right to Life Committee, worries that outside pro-choice activists will make a last-minute surge into the state. “I’ve seen other states actively sending people into West Virginia to campaign against Amendment 1,” Cross told me. “There’s going to be a lot of outside help against the amendment. I wouldn’t be surprised to see things pouring in at the very last minute.”

Although opponents of Amendment 1 portray the measure as “radical” and “unprecedented,” taxpayer funding for elective abortion is more the exception than the rule in America. Federal law prohibits U.S. tax dollars from directly funding abortion, except in the cases of rape, incest, or to save the life of the mother. In administering their Medicaid programs, 33 states follow the same general guidelines. Only 17 states use state Medicaid dollars to cover elective abortions. Of those, just five do so voluntarily; the other 12, like West Virginia, have been mandated to do so by courts.

Using State-Level Action to Chip Away at Abortion

Two states are seeking to leave that list of 17 this year. Besides West Virginia, deep-blue Oregon will also vote on a constitutional amendment to end state-funded abortion. (In Oregon, the measure was initiated by citizens rather than the legislature.) A third ballot initiative, an amendment in Alabama, is more ambitious. Besides including text identical to West Virginia’s, Alabama’s amendment explicitly recognizes “the sanctity of unborn life and the rights of unborn children, including the right to life.”

Ballot initiatives are a bold strategy for enacting policy—the closest our republic comes to direct democracy. They are a way of gauging the will of the people in no uncertain terms. Although the United States has some of the most permissive abortion laws in the world, most Americans tend to take a more moderate view. A Gallup poll this June found that a majority of Americans—both men and women—believe abortion should be legal only in certain circumstances, and they tend to favor fewer circumstances.

In recent years, this public consensus has been reflected in the success or failure of pro-life ballot initiatives. While bolder “personhood” ballot initiatives have tended to fail, initiatives ending taxpayer funding of abortion—which nearly two-thirds of Americans oppose—tend to succeed.

Another pro-life success story is the advent of state-level Pain-Capable Unborn Child Protection Acts, which limit legal abortion to an unborn child’s first 20 weeks of life. Since 2010, these laws have been passed in 16 states, including West Virginia. “In 2013, the year I became attorney general,” Morrisey remembers, “West Virginia was actually an outlier in terms of the states: abortions were allowed to be legally performed until birth. It was an absolutely outrageous position.”

After Morrisey’s office did a survey of the abortion laws and presented its findings to the legislature, a Pain-Capable Act was passed with bipartisan support in 2014. It was promptly vetoed by the governor, a Democrat who had previously run as pro-life. The following year, the legislature passed the Pain-Capable Act again, this time overriding the governor’s veto.

Six legislators (all Democrats) who had voted “yes” on prior versions of the bill voted “no” on the veto override. “When they knew the governor would veto, they voted in favor,” Rucker says. “But when it came time to actually put the law into effect, they voted ‘no.’”

‘He Went to Washington and Caved’

The intersection between abortion policy and party politics is unique in West Virginia, and it could play a role in this year’s congressional midterms. By almost any measure, West Virginia is a pro-life state. “West Virginians have always been for the downtrodden, the helpless, and the vulnerable,” explains Buchanan. “Who is more helpless and vulnerable than the unborn baby in the womb?”

Responding to popular sentiment, politicians of both parties typically run on a pro-life platform. “When our West Virginians for Life PAC endorses candidates, those candidates have an 86 percent success rate,” Buchanan says. “We’ve even got Democrats who try to compete with each other over how pro-life they are.” In the legislature, Amendment 1 was approved by more than two-thirds in both houses, by members of both parties.

However, the disconnect between campaign rhetoric and policy votes is becoming a bigger issue—particularly for the state’s representation in Washington DC. West Virginia’s best-known “pro-life” Democrat, U.S. Sen. Joe Manchin, was endorsed by West Virginians for Life during both his campaigns for governor, and in his initial run for the U.S. Senate. As soon as he arrived in Washington, however, things changed.

“When Joe Manchin came to Washington, up until then he’d been a faithful pro-lifer,” says Cross. “The first year he was in the Senate, his pro-life voting record dropped to 20 percent. He caved to his colleagues. He caved faster than most.” Despite Manchin’s ongoing designation in the national media as a “pro-life Democrat,” he continues to be unreliable, consistently voting to fund Planned Parenthood and warning President Trump not to nominate Supreme Court justices who would overturn Roe v. Wade.

This year, Manchin’s race for reelection is one of the GOP’s best chances to flip a Senate seat. Both West Virginians for Life and National Right to Life have endorsed Manchin’s Republican opponent, Morrisey. “We know that we can count on Patrick Morrisey,” Cross says. “As attorney general he’s been wonderful on the issue of life. The fruit of the congressman or senator is his votes. We know that we cannot count on Manchin for his votes, but we can with Morrisey.”

Another closely watched federal race in West Virginia is the open seat in U.S. House District 3, where pro-life Republican Carol Miller is running against Richard Ojeda, a Democrat. Ojeda, a state senator and Army veteran, became a darling of the national left during West Virginia’s recent teachers’ strike. Michael Moore, Politico, and The New York Times all lined up to interview this rare curiosity: a Trump-country progressive. The national spotlight was a boon for Ojeda’s fledgling congressional campaign, and somewhere along the way, he shifted his position on abortion.

“When Ojeda first got to the West Virginia Senate, he was very pro-life – enthusiastically pro-life,” Cross says. “Then, something abruptly changed. I’ve been doing this long enough that I can always tell: Suddenly, these politicians start dodging me in the halls, avoiding eye contact. Ojeda turned into a pro-abortion vote almost overnight. He voted against Amendment 1. That’s not going to fly in southern West Virginia.”

It’s all About Voter Turnout

With Election Day just weeks away, West Virginia’s pro-lifers are working against the clock to inform voters about Amendment 1. “We still meet people every day who haven’t heard about the amendment,” Buchanan says. “But when they do, they tend to support it. Besides being a pro-life issue, it’s a taxpayer issue. West Virginians pay taxes for a lot of things, and this isn’t something they want their tax dollars going toward.”

Although public opinion is on their side, pro-life leaders worry that the opposition has more energy, and more funds to spread misinformation. “People just assume West Virginia’s a pro-life state, and it is,” says Cross. “But it’s easy to become complacent. We really need our people to come out and vote.” The hope is that as voters come out for Amendment 1, they will also cast their ballots for pro-life candidates.

“We are really putting to the test this perception everyone in the state has,” adds Rucker. “If we fail this test, it will definitely be a step backwards. It really is a make-or-break moment. Everyone is holding their breath.”

For his part, Morrisey is optimistic. “I think that the combination of Amendment 1, the support I’m getting from the pro-life community, and Manchin’s flip-flopping on Planned Parenthood and abortion issues – I think that’s going to motivate a lot of pro-life voters to get to the polls,” Morrisey says. “And that’s going to allow Amendment 1 to pass, and it’s going to help ensure that I prevail over Senator Joe Manchin. West Virginia is a pro-life state. Manchin is out of touch with the majority of the people in the state.”

Manchin’s campaign did not respond to a request for comment on Amendment 1. However, a statement the senator gave to Politico was non-committal. “We’ll see what happens,” he said. It’s an ironic non-position, given that Amendment 1 would simply restore a law the state legislature passed in 1993. One of the state senators who voted “yes” on that bill 25 years ago: Joe Manchin.