MT lawmakers seek to interpret state constitution as means to restrict abortion

The Montana legislature is considering a proposal that would interpret the state’s constitutional right to privacy to mean that it does not protect the right to an abortion, a move that would echo others in several states to severely restrict or ban abortion.

Sen. Keith Regier, the proposal's sponsor, argued during a committee hearing Tuesday that the phrase "individual privacy" in the state Constitution should also refer to unborn babies that are individuals who have rights that should not be infringed upon.

State efforts to regulate abortion became more urgent after the U.S. Supreme Court ruled in June — in the Dobbs v. Jackson case — to leave abortion rights up to the states. The ruling overturned the 1973 decision in the Roe v. Wade case that found the due process clause of the 14th Amendment to the U.S. Constitution provided a privacy right that protected the right to an abortion.

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The Iowa Supreme Court in June cleared the way for lawmakers to limit or ban abortion in that state, reversing a decision issued by the court just four years earlier that guaranteed the right to abortion under the Iowa Constitution. Other states, meanwhile, including Minnesota and Maine, are taking steps to protect abortion access.

Earlier this month, the Idaho Supreme Court upheld a ban on abortions on the same day that justices in South Carolina blocked a law that would ban abortions after cardiac activity in the fetus can be detected.

Montana's Constitution states: "The right to individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."

"Privacy was never intended as a cloak for abortion," said Bob Leach, a Republican activist who supports the bill that would effectively nullify a 1999 Montana Supreme Court ruling that protects a woman’s right to a pre-viability abortion.

But abortion rights advocates argued that the states protect privacy and, therefore, abortion.

Martha Fuller, the president and CEO of Planned Parenthood Advocates of Montana, testified Tuesday that Montana’s constitutional right to privacy is one of the strongest in the nation. She was among several opponents who said the courts, not the Legislature, should determine what is or isn’t in the Constitution.

Supporters of Regier’s bill argue the Montana Supreme Court was wrong in its 1999 Armstrong ruling and Regier’s proposed law, which would likely face a legal challenge if it passed, would give the Montana Supreme Court a chance to reconsider its previous ruling.

Republican lawmakers also noted under Montana law, people can be charged with homicide for causing the death of a fetus. However, the law includes exceptions for abortions.

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The Senate Judiciary Committee did not vote on Regier’s bill on Tuesday.

Under current Montana law, abortions are legal up to 24 weeks of gestation. The 2021 Legislature passed a law to reduce the time of gestation to 20 weeks, but a judge has blocked it from being enforced while the legal challenge is pending.

As part of the state's defense of the 2021 abortion laws, Attorney General Austin Knudsen asked the state Supreme Court to overturn its 1999 Armstrong ruling.

The ruling states that the constitutional right to privacy leads to a right to personal autonomy that includes the right to make medical judgments affecting bodily integrity and a woman’s right to obtain a pre-viability abortion.

Knudsen said the framers of Montana's 1972 Constitution did not include the right to an elective abortion in the document and he argues the issue should be left to the Legislature.

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However, a group of Constitutional Convention delegates filed a brief in the case saying their intention was to leave it to the judiciary to determine what was included in Montana's constitutional right to privacy. The state Supreme Court declined Knudsen's request to take up the Armstrong ruling before the lower court held a hearing and ruled in the legal challenge to the 2021 abortion laws.

At a March for Life rally at the state Capitol last Friday, Knudsen again argued the Armstrong ruling should be overturned.

Gov. Greg Gianforte also spoke, saying efforts to restrict access to abortion also need to include ways to help families to care for children.

Gianforte noted his legislative proposals this year include increasing postpartum Medicaid coverage to a year, up from two months; the creation of a $1,200 annual tax credit for the parents of children under the age of 6 and who earn less than $50,000 a year; and a $5,000 tax credit for families that adopt children.