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WEST virginia Legislature
2023 regular session
Introduced
House Bill 2976
By Delegates C. Pritt, McGeehan, and Chiarelli
[Introduced January 24, 2023; Referred to the Committee on the Judiciary]
A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2P-1, §16-2P-2, §16-2P-3, §16-2P-4, §16-2P-5, and §16-2P-6, all relating to the creation of the "Keep Roe Reversed Forever Act;" creating a civil action for injunctive and declaratory relief pursuant to the Tenth Amendment and the establishment clause of the First Amendment of the United States Constitution and Section 3-15, Article III of the West Virginia Constitution against a federal actor that attempts to remove restrictions imposed by this State and its people on licentious religious practices of convenience abortion; providing for a short title; providing for legislative findings; providing for definitions; providing for enforcement, supplemental jurisdiction and construction; and providing for an effective date.
Be it enacted by the Legislature of West Virginia:
This article and act may be referred to as the "Keep Roe Reversed Forever Act."
The legislature finds that:
(a) Article VI clause 2 of the United States Constitution sets forth that the text of the United States Constitution is the supreme law of the land and reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," which means that although federal law made by the three federal branches of government preempts state law when they conflict, the text of the United States Constitution preempts federal laws made by the three federal branches when they conflict;
(b) The question of when life begins - from the moment of conception until the time of birth - and convenience abortion practices are a matter of religion that are governed by the establishment clause and the free exercise clause of the First Amendment of the United States Constitution, which reads that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
(c) Section 3-15, Article III, of the West Virginia Constitution requires the same thing as the establishment clause and free exercise clause of the First Amendment of the United States Constitution and reads, "No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief, but all men shall be free to profess and by argument, to maintain their opinions in matters of religion; and the same shall, in nowise, affect, diminish or enlarge their civil capacities; and the Legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this state, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support, such private contracts as he shall please;"
(d) The United States Supreme Court in overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992) in Dobbs v. Jackson Women's Health Organization, 19-1392 (2022) because the decisions were egregiously wrong when decided and for other reasons set forth in the opinion;
(e) In response to the leaking decision of the Dobbs’ decision, the Federal Congress set out to codify the Roe and Casey decisions, through the Women’s Health Protection Act and other similar measures, while threatening to remove the filter buster to do so;
(f) The textual basis in the United States Constitution for permanently overruling the egregiously wrong decisions in Roe and Casey and for prohibiting the federal Congress or Executive branch from codifying or reviving the Roe and Casey decisions through policy proposals, like the Women’s Health Protection Act and other similar legislation, is the establishment clause of the First Amendment of the United States Constitution because a policy created by any of the three federal branches that prohibits the States from regulating convenience abortion practices has the effect of establishing America as a secular humanist theocracy;
(g) Prior to Roe and Casey, the Supreme Court of the United States found that secular humanism is a religion for purposes of the First Amendment’s religious clauses in
(1) Torcaso v. Watkins , 367 U.S. 488 (1961);
(2) School District of A Bington Township Pa. v. Schempp, 374 U.S. 203 (1963);
(3) United States v. Seeger, 3 80 US 163 (1965);
(4) Welsh v. United States, 398 U.S. 333 (1970), and the federal courts of appeals found the same thing in:
(1) Malnak v. Yogi, 592 F.2d 197 (3d Cir.1979);
(2) Theriault v. Silber, 547 F.2d 1279 (5th Cir.1977);
(3) Thomas v. Review Bd., 450 U.S. 707 (1981);
(4) Lindell v. McCallum , 352 F.3d 1107 (7th Cir.2003);
(5) Real Alternatives, Inc. v. Sec'y Dep't of Health & Human Servs. , 150 F. Supp.
3d 419, 2017 WL 3324690 (3d Cir. Aug. 4, 2017); and
(6) Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir. 2001);
(h) The naked assertions that "life does not begin at conception," that "convenience abortion is not immoral," or that "convenience abortion is not murder" amounts to a series of unproven faith-based assumptions that are implicitly religious and inseparably linked to the religion of secular humanism;
(i) While convenience abortion practices are sacred in the religion of secular humanism, those practices are considered to be evil by other religions, whose members do not want to pay taxes to support a secular humanist theocracy in the place of a Constitutional Republic;
(j) Unlike the establishment clause, the right of convenience abortion, privacy, and autonomy are not found in the text of the United States Constitution, and the States, therefore, have the authority to regulate convenience abortion practices through the powers conferred to them by the Tenth Amendment of the United States Constitution which reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;"
(k) While the belief or disbelief in the morality of convenience abortion practices is protected under the free exercise clause of the First Amendment of the United States Constitution and under Section 3-15, Article III, of the West Virginia Constitution, the free exercise clause is not absolute;
(l) As part of American tradition and heritage since the founding, this State has been permitted under the power conferred to it through the Tenth Amendment to regulate licentious religious practices, which includes convenience abortion practices, at the expense of the free exercise clause of the First Amendment of the United States Constitution;
(m) Convenience abortion practices promote licentiousness and attempt to justify practices that are inconsistent with the peace and safety of this State;
(n) This State favors life and has an interest in protecting the life of an unborn child and in upholding community standards of decency, which convenience abortion practices erode;
(o) "The Keep Roe Reversed Forever Act" is not a matter of Democrat verse Republican but a matter of this State taking back the power afforded to it and the people under the text of the Tenth Amendment and establishment clause of the First Amendment to regulate convenience abortion practices, as it sees fit; and
(p) In the instances where an unborn child recoils or kicks back at the convenience abortion provider who is trying to kill him or her, it is someone else’s body that is recoiling and fighting back, not the mother’s.
(a) As used in this article:
(1) "Community standards of decency" means standards based on the reasonable observer perspective that can be eroded by appeals to the prurient interest or the patently offensive to the extent the appeals harm the general decency, safety, health, and welfare of the community. Practices that promote licentiousness are antithetical to this standard.
(2) "Conception" means the fecundation of the ovum by the spermatozoa.
(3) "Convenience Abortion" means the same as that term "abortion" as defined in §16-2F-2 of this code. The term also means an elective or nontherapeutic abortion that means the act of using or prescribing an instrument, medicine, drug, device, or another substance or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. This type of abortion promotes licentiousness and is non-secular, religious, and controversial. The term simply means an abortion where the mother terminates the unborn child on the altar of convenience. An act is not a convenience abortion and is a secular abortion if the act is performed with the intent to:
(i) Save the life of the mother or resolve a medical emergency;
(ii) Save the life or preserve the health of the unborn child;
(iii) Remove a dead unborn child caused by spontaneous abortion;
(iv) Remove an ectopic pregnancy;
(v) Abort and remove an unborn child that is the result of rape or incest reported to a law enforcement agency; or
(vi) Abort and remove an unborn child because of a fetal malformation that is incompatible with the baby being born alive.
(4) "Emotional appeal" means a method of persuasion through sentiment, not logic, designed to create an emotional response.
(5) "Medical emergency" means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(6) "Logical nexus" means at least some minimal, relevant, legitimate, important, or rational connection. The term connotes a low-threshold standard.
(7) "Lemon test" means a three-prong test that was originally created by the United States Supreme Court that is used to determine if government action is unconstitutional under the establishment clause. The test requires that government action or a government policy:
(i) Have a valid secular purpose;
(ii) Not have the effect of advancing, endorsing, or inhibiting religion; and
(iii) Not foster excessive entanglement with a particular religion. Government action violates the establishment clause and Section 3-15, Article III, of the West Virginia Constitution if it fails to satisfy any of the three prongs.
(8) "Licentious or licentiousness" means lacking legal or moral restraints especially - disregarding sexual restraints. The term includes conduct that is sexually deviant, perverted, immoral, lewd, debauched or practices that promote promiscuity, that appeal to the prurient interests, harm the innocence of children, or erode community standards of decency.
(9) "Non-secular" means religious, faith-based, not proven, predicated on naked assertions, or emotional feelings, not self-evident objective fact.
(10) "Reasonable observer" a person of ordinary prudence who views a policy from an objective standpoint in the context of the State's long-standing practices through the lens of self-evident neutral, natural, and non-controversial transcultural morality and who is not desensitized or blinded by the unexamined assumption of the superiority of our cultural moment.
(11) "Religion" means a set of unproven answers to the greater questions like "why are we here," "what should we be doing as humans," "how do we get our identity," and "what happens after death." The term means a closed system and group or community that is organized, full, and provides a comprehensive code by which individuals may guide their daily activities. Religion involves an ultimate concern or sincere belief and can be non-theistic or theistic.
(12) "Secular abortion" means the act of using or prescribing an instrument, medicine, drug, device, or another substance or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child, when carried out to:
(i) Save the life of the mother or resolve a medical emergency;
(ii) Save the life or preserve the health of the unborn child;
(iii) Remove a dead unborn child caused by spontaneous abortion;
(iv) Remove an ectopic pregnancy; or
(v) Abort and remove an unborn child that is the result of rape or incest reported to a law enforcement agency.
(vi) Abort and remove an unborn child because of a fetal malformation that is incompatible with the baby being born alive.
(13) "Secular humanism" means a faith-based worldview that is also referred to as postmodern-western-individualistic moral relativism, expressive individualism, or anti-theism, and is often the mirror opposite of theism. The term refers to a religion that worships man as the source of all knowledge and truth. The term includes a belief system that is centered on the unproven assumptions that there are no moral absolutes and no one moral doctrine should be used as the superior basis for law and policy, except for the religious doctrines of secular humanism. The term includes a series of unproven faith-based assumptions and naked assertions that suggest that morality and truth are man-made conventions and that at the heart of liberty is man's ability to define his own meaning of the universe. The term refers to a religion that tends to promote licentiousness and attempts to justify practices that are inconsistent with the peace and safety of the states. The term refers to the belief that man is merely a bundle of chemicals, animated pieces of meat, or accidental particles, that nature is all there is, and that there is nothing after death. The idea that life does not begin at conception and that convenience abortion is not immoral, or that a convenience abortion is not murder is a doctrine that is inseparably linked to this religion. The term refers to a religion that has many different denominational sects and is expressed in widely varying ways.
(14) "Taxpayer standing" means the standing of a taxpayer to file a lawsuit against a government actor that is directly or symbolically advancing a policy that violates the establishment clause of the First Amendment of the United States Constitution or Section 3-15, Article III, of the West Virginia Constitution, after the government actor actually or prospectively engaged in action that potentially failed at least one prong of the Lemon test. A taxpayer must have a logical nexus to a government actor’s violation to assert this form of standing. A person who pays sales tax in this state can successfully assert this form of standing before a court of competent jurisdiction.
(15) "Unborn child" means the offspring of human beings from conception until birth.
(a) Protecting Rights. - Pursuant to the powers conferred on this State under the Tenth Amendment of the United States Constitution and pursuant to the establishment clause of the First Amendment, this State shall exercise the right to determine the manner in which it will regulate and convenience abortion practices, which are religious practices that promote licentiousness and are inseparably linked to the religion of secular humanism.
(b) Civil Action For Injunctive Relief. - Pursuant to the establishment clause of the First Amendment of the United States Constitution, the Tenth Amendment of the United States Constitution, Section 3-15, Article III, of the West Virginia Constitution, and the State’s narrowly tailored compelling interest to uphold community standards of decency, if a federal government actor attempts to enact or enforce a policy that aims to preempt or undo any restriction imposed by this State on convenience abortion practices, the Attorney General or a person residing in this state shall have taxpayer standing to file a civil action under this section in a court of competent jurisdiction where they can seek:
(1) Injunctive relief,
(2) Declaratory relief;
(3) Attorney fees and costs; and
(4) Any other relief deemed appropriate by the court.
(c) Declaration Regarding Oath. - In seeking declaratory relief under subsection (b) subparagraph (2) of this section, a plaintiff may ask the presiding court to declare that the defendant violated their oath of office undertaken pursuant to clause 3 of Article VI of the United States Constitution in attempting to undo a restriction imposed by this State on convenience abortion practices by violating the establishment clause of the First Amendment and the Tenth Amendment.
(d) Non-Defense. - Emotional appeals, even really good ones, cannot serve as a valid defense to this section.
(e) Supplemental Jurisdiction. - If a person or the Attorney General files a civil suit in federal district court under 42 USC § 1983 against a federal actor for a violation described in section (b) of this section for a count under the First Amendment establishment clause or a count under the Tenth Amendment and also pleads a count under subsection (b) of this section, the presiding court may find that it has supplemental jurisdiction to hear the claim under subsection (b) of this section.
(a) This article is constructed on the premise that:
(1) When life begins from the moment of conception until birth is a matter of religion;
(2) Convenience abortion practices and ideology are inseparably linked to the religion of secular humanism;
(3) An attempt by any of the three branches of the federal government to infringe upon this State’s right to regulate convenience abortion practices serves to establish a national religion, putting the religion of secular humanism over other religions and over non-religion in a manner that violates the establishment clause of the First Amendment of the United States Constitution.
(4) This State has paramount jurisdiction to regulate convenience abortion under the Tenth Amendment since convenience abortion practices are not protected anywhere in the United States Constitution other than in the free exercise clause, which is not absolute;
(5) There is a long-standing American tradition and heritage that the States are permitted to regulate licentious religious practices at the expense of the free exercise clause of the First Amendment, which includes regulating convenience abortion practices that encourage promiscuity and death;
(6) Convenience abortion practices promote licentiousness and attempt to justify practices that are inconsistent with the peace and safety of the State;
(7) This State favors life and has an interest in protecting the life of an unborn child;
(8) There is a difference with a distinction between a secular abortion and a non-secular convenience abortion from a legal perspective.
(b) Non-Construction. - This section is not constructed to:
(1) Allow for discrimination against anyone who believes or disbelieves in the religious morality of convenience abortion doctrine or practices.
(2) Draw the line when convenience abortion can take place, if ever, from the moment of conception until birth for that matter is addressed in a different section of this State’s code.
(3) Prevent the subsequent finding that an unborn child in the womb is a person from the moment of conception that must be afforded all of the protections guaranteed by the Fourteenth Amendment.
This act shall go into effect immediately upon passage.
NOTE: The purpose of this bill is to establish that the Establishment Clause of the First Amendment of the United States Constitution is the underlying legal basis that supports Amendment No 1. of the West Virginia Constitution’s prohibition of directly or symbolically endorsing convenience abortions or from the state providing federal or state taxpayer dollars to facilities that provide convenience abortions.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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