It’s currently the law of the land that abortion is legal.   Americans may be split on abortion, but the U.S. Supreme Court’s decision in Roe v. Wade established a standard that, until or unless it is overturned, protects a woman’s right to terminate a pregnancy.

Less clear, however, is whether the government should be required to pay for abortions.  That issue has surfaced in the West Virginia legislature where pro-life advocates are pushing a bill that would block the state from using taxpayer dollars—by way of Medicaid—to pay for elective abortions for poor women.

Pro-choice advocates argue that state funding is constitutional because of a 1993 West Virginia Supreme Court decision.  In a 3-2 ruling in what has become known as the “Panepinto Decision” (named for then-state Health and Human Resources Secretary Ruth Panepinto) the court struck down the new state law that would have prohibited the use of state Medicaid funds for abortion except in limited circumstances.

Justice Margaret Workman wrote the opinion, concluding that the law constituted “undue government interference in violation of the state’s obligation to act neutrally with regard to the exercise of the federally protected right to terminate a pregnancy.”

Margaret Chapman of the pro-choice group “West Virginia Free” told me on Talkline Monday that the court decision means the issue has already been settled.   She added in a news release “a ban on Medicaid funding of abortion would hurt the most disadvantaged women in West Virginia.”

But this issue needs another look, in the legislature and probably in the courts as well.

The U.S Supreme Court in Harris v. McRae in 1980 found that “it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” 

In other words, government cannot place obstacles in the way of a woman getting an abortion, but that protection does not extend so far as to require the state to pay for it.  

Consider the Second Amendment.  Citizens have the right to possess a gun, but the taxpayers are not obligated that buy the gun for a person who cannot afford one.

West Virginia is one of just 16 states that pays for elective abortions.  It’s peculiar to find West Virginia on that list since this is generally a pro-life state.  But this year the legislation has a better chance of passage than pervious years.

The bill has been assigned to the House Finance Committee, which is chaired by Del. Harry Keith White who is pro-life.  Last year the bill died in the House Judiciary Committee, which is chaired by Del. Carrie Webster who is pro-choice.

If the bill passes the house it should sail through the senate to the desk of Gov. Manchin, who is pro-life. 

No doubt the bill if it becomes law would end up back in the West Virginia Supreme Court, a court which interestingly has as one of its newest members Margaret Workman, who won a seat in last year’s election after sitting out a term.