Judiciary OKs abortion bill

March 07--was standing room only, packed with pro-choice and anti-abortion advocates. Voices for both sides spoke and committee counsel Kevin Baker explained why he thinks the bill is unconstitutional.

The voice vote was subdued and barely audible on both sides. A few dissenters said no.

HB 4588, now called the CHARLESTON -- Senate Judiciary approved the House 20-week abortion ban bill Thursday and sent it to the Senate floor. The Judiciary meeting room Pain-Capable Fetus Protection Act, bans abortions when the fetus post-fertilization age is 20 or more weeks, unless the fetus is medically non-viable or "to avert [the mother's] death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions."

Baker said the bill, in his view, violates rights to privacy and due process. In Roe vs. Wade, the U.S. Supreme Court set medical viability -- 24 weeks after the last menstrual cycle, 22 week post-fertilization -- as the cutoff point for states to prohibit abortions. Three states that have tried 20-week post-fertilization bans -- Idaho, Georgia and Arizona -- have had their laws overturned in state or federal court.

Charleston Area Medical Center obstetrician Dr. Stephen Bush testified that the bill's lan- guage is ambiguous and therefore problematic. It puts doctors in the awkward position of, at times, facing a criminal charge for following the accepted standard of care.

For instance, if a pregnant woman has a heart-valve problem called mistral stenosis, the doctor might risk further harm to the woman by delaying treatment to avoid a criminal charge. "This is very upsetting to us," he said.

Bush said that in West Virginia, post-20 week abortions are not performed by cutting up the fetus. They are delivered vaginally. If there's fetal pain at 20 weeks, there will be pain at 24 weeks, or full term.

Dr. Lori Tucker, a Princeton obstetrician and sister-in-law of committee vice-chairman Gregory Tucker, D-Nicholas, said she is against abortion, volunteers at a Christian-based pregnancy clinic and doesn't advocate abortion as a form of birth control. "No one goes into this to kill babies."

But there are times when an abortion during the two-week period in question in the bill (22 to 24 weeks post-menstrual period) is needed. If a mother's water breaks, she and the child are subject to infection, and the child will likely become non-viable. Waiting until the child comes to term harms the mother and does nothing to help the baby survive.

Under the bill, she said, a doctor who obeys the law by denying an abortion may face loss of malpractice insurance by failing to meet standards of care.

Both doctors said that the bill's provisions regarding fetal non-viability and saving the mother's life don't help, because they're too vague.

West Virginians for Life lobbyist John Carey attempted to refute some of Baker's points. He noted that 10 states have 20-week bans. Seven have gone unchallenged. Of the three that failed, Arizona's law is very different from this bill and one challenge was based on restrictions on doctors and clinics, not the pain-capable provision.

He said pain-capable is a new, untested standard rising around the country. But Baker countered that the U.S. Supreme Court has consistently held viability as the standard. Both obstetricians said that in their experience, no fetus delivered before 24-week post-menstrual period mark has proved viable.

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