On Election Day, voters in Alabama and West Virginia passed amendments that will not only codify anti-choice misinformation in their state constitutions, but will also place further restrictions on abortion access. Anti-abortion advocates portrayed the measures as harmless and unlikely to impact abortion rights. However, the amendments are actually part of a long-term strategy to end abortion access in these states should the Supreme Court -- now with a newly minted Justice Brett Kavanaugh -- eliminate federal abortion protections by overturning Roe v. Wade.
West Virginia’s Amendment 1 added language to the state's constitution declaring, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” Alabama’s Amendment 2 featured almost identical language, but also included a requirement that the state’s “public policy” is “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life” -- a subtle way of asserting the scientifically unfounded belief that life begins at conception.
Before the midterm elections, anti-abortion advocates in Alabama and West Virginia depicted the amendments as innocuous measures, and criticized what they viewed as hysterical prognosticating from pro-choice advocates about their dangers. Several representatives of Alliance for a Pro-Life Alabama wrote in an op-ed that they had “watched with outraged disbelief the absurd attacks that Planned Parenthood is hurling at Amendment Two,” and asserted that such characterizations of the amendment were based in “lies” and “distortions.” Similarly, Yes on 1, the anti-abortion campaign in West Virginia, said that opponents of the measure had “some hysterical claims about what will happen when Amendment 1 passes.” Right-wing media and abortion opponents also deployed this tactic when Kavanaugh was nominated to the Supreme Court by painting pro-choice advocates predicting that he would overturn or restrict Roe as emotional and delusional. However, many of those same abortion opponents celebrated Kavanaugh’s confirmation as a step toward that very goal.
Anti-abortion groups in both states pushed similar misinformation about their respective constitutional amendments before Election Day. Alliance for a Pro-Life Alabama sent out a so-called “Myth Busters Memo” attempting to debunk claims from pro-choice groups that the state’s amendment would “outlaw all abortions without exceptions” and prohibit certain types of fertility treatment. Yes on 1 similarly whitewashed the West Virginia amendment, alleging that it was not a threat to abortion access because “no rights will be taken away” with its passage.
In reality, both of these amendments are dangerous because both could be enforced to prohibit all abortions if the Supreme Court overturns Roe v. Wade. As Lauren Holter explained for Rewire.News, the West Virginia amendment “does not include exceptions for rape, incest, fetal anomaly, or threats to the pregnant person’s life,” and Alabama’s amendment “could lead to the criminalization of some forms of contraception and in-vitro fertilization" because it establishes the standard of “personhood” upon conception.
West Virginia and Alabama are not the first states to pass anti-abortion constitutional amendments, and their common language stems from a previous state amendment pushed by anti-abortion groups in Tennessee. Pacific Standard described that “pro-life legal tactic” as “the culmination of a decade-long battle against abortion rights,” and noted that since it was passed in 2014, “Tennessee has again implemented 48-hour waiting periods, a ban on public funding, and a ban on abortion after viability.”
West Virginia’s The Register-Herald spoke with Jessica Arons, senior advocacy & policy counsel for reproductive freedom at the American Civil Liberties Union:
Arons sees West Virginia’s ballot measure as “‘one piece of the puzzle”’ in a national strategy by anti-abortion activists to enact laws that sound reasonable, but when you take a closer look, make it harder to access abortion.
“They make it sound like they’re just trying to protect women’s health and safety, but the reality is they’ve been designed to cut off access to care and to shame and harass women for seeking abortion services,” she said.
The ending of Medicaid-funded abortion in West Virginia would be the “immediate impact,” Arons said, “but the proponents of this measure, again, they’re playing the long game.”
Enacting anti-choice restrictions under the guise of protecting patients’ health is a longstanding right-wing tactic for eliminating abortion access. As part of this strategy, anti-abortion advocates frequently couch anti-choice restrictions aimed at banning or limiting abortion access in neutral or seemingly helpful language, such as burdensome and unnecessary clinic regulations disguised as safety precautions, but with the true purpose of closing clinics. This tactic was quickly picked up by right-wing media who lament abortion as unsafe -- despite the fact that having an abortion is an incredibly safe and normal part of health care.
Yamani Hernandez, executive director of the National Network of Abortion Funds, told Glamour’s Macaela Mackenzie that West Virginia’s amendment “is something that we consider to be discriminatory, something that targets people of color and people with lower incomes and discriminates against people based on the insurance coverage that people have.” Slate’s Christina Cauterucci described how West Virginia’s amendment in particular makes it easier for the state legislature to pass anti-abortion legislation, in addition to its “immediate ramifications” for those on Medicaid, who will “lose their ability to access funding for abortion care.”
Cauterucci also noted that in West Virginia, which still has an unenforced pre-Roe ban on abortion on the books, the new amendment “would, in concert, criminalize abortion providers as felons if the Supreme Court overturns Roe.” This could also prove true in Alabama, as Rewire.News’ Imani Gandy forewarned:
Prosecutors in Alabama could, technically, begin enforcing an abortion ban immediately. They don’t have to wait for the Supreme Court to reverse Roe. Prosecutors could begin charging abortion providers for performing abortions under the state’s pre-Roe ban, testing the willingness of state court judges to defy federal law and let those cases proceed.
The midterm elections resulted in several Democratic flips of governorships and legislatures that could potentially protect and even expand abortion access. However, those gains are of little comfort to people who need abortion access in West Virginia and Alabama, or to those in other states that are also vulnerable to further anti-choice restrictions and media misinformation from anti-abortion advocates.