West Virginia's Amendment 1 in 2018 was approved and added language to the state's constitution that said "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion." (Getty Images)
A mugshot of a young woman in West Virginia, with the charge listed as “abortion,” recently exploded across social media, igniting a storm of fear and outrage. The image was later revealed to be a clerical error, but not until it had been shared hundreds of times by concerned citizens across the state, even prompting popular TikTok creator, TizzyEnt, to comment on it to his 6.5 million followers. The rapid sharing of this incident highlights a deeper, more pervasive issue: the psychological terror that West Virginia’s draconian abortion laws are inflicting on its citizens.
The fact that “abortion” can even be erroneously entered as a criminal charge 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 limited circ*mstances, women have been living under a cloud of fear. This fear is not just about the legal ramifications but also the psychological burden of navigating reproductive health in an increasingly hostile environment.
The recent Supreme Court decision to overturn Roe v. Wade has left a patchwork of abortion laws across the United States, with some states moving swiftly to protect access while others, like West Virginia, have chosen to criminalize it. Despite the state legislature’s initial discussions concluding that only those performing illegal abortions would be prosecuted, the real-life implications for women who might attempt to self-manage their abortions remain chillingly ambiguous, waiting to be tested in the courts.
Former President Donald Trump has often touted the overturning of Roe v. Wade as a victory, claiming it returns the decision-making power to the states. Yet, in practice, this has meant that states like West Virginia, where the legislature holds the reins on constitutional amendments, can impose severe restrictions without any direct input from the people.
Those on the anti-abortion side have consistently pointed to the 2018 constitutional amendment, known as Amendment 1, as proof of where West Virginians stand on abortion. I would argue not only that they’re wrong, but that Amendment 1 was itself in violation of the West Virginia Constitution and should be stricken down. The pragmatist in me knows that my arguments would likely fall on deaf ears by a Supreme Court run by Chief Justice Tim Armstead, but allow me to lay them out for you all the same.
Amendment 1 states that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” The key word here is “or.” The West Virginia Constitution is clear in its directive that an amendment should address “a single subject or related subject matters.” This principle is designed to ensure that voters can make informed decisions on discrete issues without the confusion that arises from amalgamated propositions. Amendment 1, however, merges two distinct issues —abortion rights and taxpayer funding — into a single amendment. It might seem innocuous on its face, but this conflation of the two issues is deeply problematic.
The issues at hand in Amendment 1 should be recognized for what they truly represent: one is a fiscal policy matter (the funding of abortion services), while the other is a fundamental human rights issue (the right to abortion). Combining these subjects into a single amendment does a disservice to both. Fiscal policies and human rights concerns operate on different levels of legal and ethical consideration. Taxpayer funding involves debates over budgetary allocations and financial responsibility, whereas the right to abortion touches upon deeply held principles of personal autonomy and human dignity. They are fundamentally unrelated and should be separate questions.
Addressing these issues separately would have allowed voters to engage with each topic on its own merits, ensuring that the implications of their choices were fully understood. By presenting them together, Amendment 1 obfuscated the distinct nature of these issues. This is often referred to as “riding,” where an unpopular measure (like eliminating a human right) is attached to a popular one (like limiting government spending) so that the combined amendment has a better chance of passage.
And this isn’t just my opinion. Marist Poll data on American views about abortion, measured over the past decade in partnership with the Catholic charity Knights of Columbus, presents a striking revelation about the complexity of public opinion on abortion. Over the years, a consistent majority of Americans have identified as pro-abortion, with recent numbers showing as many as 58% holding that stance. Yet, when the question shifts to taxpayer funding of abortion, support plummets by an average of 17%. In January 2018, the most recent Marist poll taken before Amendment 1 was voted on, 51% of respondents identified as pro-abortion but only 36% supported taxpayer funding of abortion. 60% of those surveyed opposed taxpayer funding of abortion even though only 44% identified as anti-abortion. This stark contrast underscores a crucial nuance: Americans can support the right to choose while simultaneously opposing the use of public funds for abortion services. These are not contradictions but reflections of a public that draws distinctions between personal autonomy and fiscal responsibility.
This divergence in opinion is precisely where the proponents of Amendment 1 found their foothold. By coupling the popular measure of limiting taxpayer funding — a stance that regularly garners majority support — with the far less popular goal of removing constitutional protections for abortion, they effectively “rode” the former to achieve the latter. Michael D. Gilbert, vice dean of University of Virginia School of Law, has called this practice of riding “a threatening practice” that “should be eliminated under the auspices of the single subject rule.”
The polling data demonstrates that the variance between support for abortion rights and opposition to taxpayer funding would have been significant enough to propel the amendment to passage, but let’s also examine how the amendment was sold to the public.
Advertisem*nts by West Virginians for Life bombarded voters with messages like “Vote Yes Nov 6th on Amendment 1 to Stop Taxpayer-Funded Abortions!“, “Do you want your taxpayer dollars paying for abortion?,” and “Abortions! Not with my money!” The headline on their website declared, “Prevent your tax dollars from paying for abortions.” A fact sheet claimed “Abortions will remain legal in West Virginia when Amendment 1 passes this November. Only taxpayer funding of elective abortions will end.” A video produced by West Virginians for Life claimed that “As West Virginians, we have a moral responsibility to end forced tax payment for abortion.” After the passage of the amendment, their press release opened with “It was an historic victory for the taxpayers of West Virginia…”
Do you see the theme? This messaging isn’t exclusive to West Virginians for Life. A letter signed by 34 state senators and delegates at the time claimed, “No one should be forced to pay for something that is against their sincerely held beliefs and conscience… We voted to put SJR12 on the ballot so that YOU would finally have a say as to your tax dollars paying for elective abortions. Some 35,000 abortions have been estimated to have taken place with $10 million of your money over the years in West Virginia. … Let’s join the other 33 states that don’t support taxpayer-funded elective abortions.” Emphasis added.
In all this messaging on taxpayer-funding of abortions, there is little or no mention of the right to an abortion. And in many cases, they asserted that abortion will still be legal, which has obviously not aged well. This intentionally led voters to support the amendment under false pretenses, believing they were merely addressing a fiscal concern rather than a human rights concern. So, let’s stop pretending that Amendment 1 represents the values of West Virginians. By failing to respect the principle of single-subject amendments, Amendment 1 undermines the electorate’s ability to make informed decisions and sets a troubling precedent for future amendments.
The strategic bundling of these two issues under a single amendment combined with how the amendment was sold to the public actively manipulated voter sentiment, masking a drastic reduction of rights under the guise of fiscal conservatism. In this light, it becomes evident that Amendment 1 was less about a principled stand on abortion and more about exploiting a public consensus on government spending to erode fundamental human rights. I believe there is enough evidence to support a strong legal challenge to Amendment 1, and while I am no stranger to lawsuits, I would challenge anyone more practiced in constitutional law to take the torch from here.
The public outcry over the very thought of a woman being imprisoned for abortion should serve as a wake-up call. It is a reminder that the fear and anger experienced by many in that moment are not fleeting emotions but a daily reality for countless women in the state. It’s clear what needs to happen. West Virginians must demand access to OUR constitution.
The people of West Virginia deserve a fair and honest ballot initiative for establishing a constitutional right to abortion before fetal viability. We should be demanding the right to be in charge of our own constitution and not have to rely on the whims of lawmakers to do it for us, especially on matters as personal and significant as reproductive health.
The time for change is now.
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