A mug shot of a youthful woman in West Virginia with the charge of “abortion” recently surfaced on social media, sparking a storm of fear and outrage. The image later turned out to be a Typobut only after it was shared hundreds of times by concerned citizens across the state, prompting even the popular TikTok creator to TizzyEntto comment to his 6.5 million followers. The fact that this incident was shared so quickly sheds delicate on a deeper, more widespread problem: the psychological terror that West Virginia’s draconian abortion laws inflict on the state’s citizens.
The fact that “abortion” can even be falsely punished as a crime speaks volumes about the state of reproductive rights in West Virginia. Since September 2022, when the state began enforcing its near-total ban on abortion, except in extremely restricted cases, women have lived under a cloud of fear. That fear concerns not only the legal consequences, but also the psychological burden that comes with managing reproductive health in an increasingly hostile environment.
The Supreme Court’s recent decision to overturn Roe v. Wade has left a patchwork of abortion laws across the United States. Some states have acted quickly to protect access to abortion, while others, like West Virginia, have decided to criminalize it. Although initial discussions in the state legislature concluded that only those who perform illegal abortions would be prosecuted, the actual impact on women who might attempt to perform their own abortions remains frighteningly unclear and awaits scrutiny by the courts.
Former President Donald Trump has often touted the overturning of Roe v. Wade as a victory, claiming that it returned decision-making power to the states. In practice, however, it means that states like West Virginia, where the legislature holds control over constitutional amendments, can impose strict restrictions without direct popular input.
Those on the anti-abortion side have repeatedly pointed to the 2018 constitutional amendment, known as Amendment 1, as evidence of how West Virginians feel about abortion. I would argue not only that they are wrong, but that Amendment 1 itself violates the West Virginia Constitution and should be struck down. The pragmatist in me knows that my arguments will not hold water with a Supreme Court ruled by Chief Justice Tim Armsteadbut allow me to explain it to you anyway.
The First Amendment states that “nothing in this Constitution secures or protects a right to abortion. or requires funding for abortions.” The key word here is “or.” The West Virginia Constitution makes it clear that an amendment should address “a single issue or related issues.” This principle is intended to ensure that voters can make informed decisions on individual issues without the confusion caused by conflated proposals. Amendment 1, however, lumps two different issues – abortion rights and taxpayer dollars – into a single amendment. This may seem harmless at first glance, but this conflation of the two issues is deeply problematic.
The issues addressed in Amendment 1 should be recognised for what they really are: one is a question of fiscal policy (the funding of abortion services), while the other is a fundamental human rights issue (the right to abortion). Combining these issues in a single amendment does neither of them any favours. Fiscal policy and human rights issues operate at different levels of legal and ethical consideration. Taxpayer funding is about debates about budget allocations and fiscal responsibility, while the right to abortion touches on deeply held principles of personal autonomy and human dignity. They are fundamentally unrelated and should be separate issues.
Treating these issues separately would have allowed voters to consider each issue individually and ensure they fully understood the implications of their decisions. Treating them together in Amendment 1 obscured the distinct nature of these issues. This is often referred to as “riding,” which involves linking an unpopular measure (such as eliminating a human right) with a popular one (such as limiting government spending) so that the combined amendment has a better chance of passing.
And that’s not just my opinion. Marist Poll Data of Americans’ views on abortion, collected over the past decade in partnership with the Catholic charity Knights of Columbus, provides remarkable insight into the complexity of public opinion on the issue of abortion. Over the years, a consistent majority of Americans have identified themselves as pro-abortion; recent figures show that as high as 58% hold this stance. But when it comes to the issue of taxpayer funding of abortion, support drops by an average of 17%. In January 2018, in the most recent Marist poll conducted before the vote on Amendment 1, 51% of respondents identified themselves as pro-abortion, but only 36% supported taxpayer funding of abortion. Sixty-two percent of respondents opposed taxpayer funding of abortion, although only 44% identified themselves as anti-abortion. This stark contrast underscores a crucial nuance: Americans can support the right to choose while simultaneously opposing the apply of public funds for abortion services. These are not contradictions but a reflection of a public that distinguishes between personal autonomy and financial responsibility.
It is precisely this disagreement where supporters of Amendment 1 have gained a foothold. By combining the popular measure of limiting taxpayer funds—a position that regularly receives a majority vote—with the far less popular goal of eliminating constitutional protections for abortion, they were in effect “riding” the former to achieve the latter. Michael D. Gilbert, associate dean of the University of Virginia School of Law, has described this practice of “riding” as “a threatening practice“, which “should be abolished under the auspices of the single-subject rule.”
The poll results show that the gap between support for abortion rights and opposition to taxpayer funding would have been enormous enough to force passage of the amendment. But let’s also look at how this amendment was sold to the public.
Ads from West Virginians for Life bombarded voters with messages like “Vote yes on Amendment 1 on November 6 to stop taxpayer funding for abortion!“, “Do you want abortions to be funded with your tax money?,” And “Abortions! Not with my money!” The headline on their website stated: “Stop your tax money from being used for abortion.” Profile claimed: “Abortion will continue to be legal in West Virginia if Amendment 1 passes in November. It will just end taxpayer funding for voluntary abortions.” video The campaign, produced by West Virginians for Life, claimed: “As West Virginians, we have a moral responsibility to end the forced tax on abortion.” After the amendment was passed Press release began with “It was a historic victory for the taxpayers of West Virginia…”
Do you recognize the theme? This message is not just for West Virginians for Life. letter The bill, signed by 34 Senators and Representatives at the time, stated: “No one should be forced to pay for something that goes against their sincerely held beliefs and conscience… We voted to put SJR12 on the ballot so YOU can finally have a say in what taxpayer dollars fund voluntary abortions. It is estimated that $10 million of your money has funded 35,000 abortions in West Virginia over the years. … Let us join the other 33 states that do not support voluntary abortions funded by taxpayers.” Emphasis added.
In all these messages about taxpayer funding for abortion, there is little or no mention of Right to an abortion. And in many cases, they claimed that abortion would continue to be legal, which obviously has not aged well. This led voters to support the amendment under false pretenses, believing it was merely a financial issue rather than a human rights issue. So let’s stop pretending that Amendment 1 represents the values of West Virginians. By ignoring the principle of single-issue amendments, Amendment 1 undermines voters’ ability to make informed decisions and sets a troubling precedent for future amendments.
The strategic bundling of these two issues into a single amendment and the manner in which that amendment was sold to the public actively manipulated voter sentiment and cloaked a drastic curtailment of rights under the guise of fiscal conservatism. In this delicate, it is clear that Amendment 1 was less about a principled stance on abortion than about exploiting a public consensus on government spending to undermine basic human rights. I believe there is enough evidence to justify a forceful legal challenge to Amendment 1, and while I no newcomer to litigationI would challenge anyone with more experience in constitutional law to carry the torch from here.
The public outcry at the very thought of a woman being imprisoned for having an abortion should be a wake-up call. It is a reminder that the fear and anger many are feeling at this moment are not fleeting emotions, but an everyday reality for countless women across the state. It is clear what must happen. West Virginians must demand access to OUR Constitution.
The people of West Virginia deserve a fair and forthright platform that enshrines a constitutional right to abortion before fetal viability. We should demand the right to determine our own constitution and not rely on the whims of legislators to do it for us, especially on issues as personal and critical as reproductive health.
Now it’s time for change.
