2 days ago
Montana Supreme Court strikes down trio of abortion bills as unconstitutional
In this photo illustration, packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023 in Rockville, Maryland. A Massachusetts appeals court temporarily blocked a Texas-based federal judge's ruling that suspended the FDA's approval of the abortion drug Mifepristone, which is part of a two-drug regimen to induce an abortion in the first trimester of pregnancy in combination with the drug Misoprostol. (Photo illustration by)
A trio of abortion-related bills, passed in 2021, were declared unconstitutional by a nearly unanimous Montana Supreme Court on Monday.
Nearly, because Justice Jim Rice wrote both a concurring and dissenting opinion affirming again Montana's constitutionally protected right-to-privacy, which includes medical procedures and abortion.
The laws were halted before they could even be practically enacted, so the hurdles to the procedure, including waiting periods, mandatory ultrasound, a pile of documentation and banning abortion after 20 weeks, even before the point of fetal viability, never rippled throughout the state.
Justice Beth Baker wrote the opinion on behalf of the court, which not only reaffirmed the state Constitution's right-to-privacy as unique and separate from federal cases on abortion, but also took the state to task for failing to support its claim that the State of Montana had a compelling interest in abortion, while not proving that any of the legislative hurdles were scientifically supported.
The lawsuit was brought by Planned Parenthood of Montana, and had a handful of other entities that wrote friends-of-the-court briefs, including a group of delegates to the 1972 Montana Constitutional Convention.
The three laws that were challenged were House Bill 136, House Bill 140 and House Bill 171:
HB 136 would have banned abortion at 20 weeks, even though expert opinion agreed that fetal viability is not possible until at least 22 weeks.
HB 171 would have put paperwork and more requirements for healthcare providers who provide abortion via medication or telehealth, subjecting them to both civil and criminal penalties.
HB 180 would have required healthcare professionals to provide both ultrasound and fetal heartbeat tones to those considering abortion, and requiring a patient to sign a form created by the state, demonstrating that the patient had been offered the choice, and yet declined.
Because fetal viability — or the concept a child can survive outside the womb — is dictated by a host of factors, including medical science and approximate age of the fetus, the court rejected the state's attempts to prescribe a fixed number of weeks for viability.
'A fixed gestational age that does not allow a provider's case-specific determination fails to ensure that the government does not interfere with an individual's private medical decision,' the ruling said. 'Until a fetus is viable and able to survive outside the womb, the right of personal autonomy belongs to the person on whose body the fetus depends.
'We find no legal authority for the idea that the state's interest in preserving fetal life or the fetus' right to life takes precedence over all constitutional protections and dignities of the mother.'
Attorneys for the state had argued that physical safety risks of abortion increase as the pregnancy progresses, and that abortions lead to worse mental health outcomes, an argument that the Supreme Court dismissed and debunked.
'The record shows that abortion is safe,' the decision said. 'As the district court noted, there were zero deaths cause by abortion in Montana between 2010 and 2020 and only 25 of 8,402 (0.3%) reported abortions in Montana from 2016 to 2021 resulted in complications. This court cannot find a bona fide health risk simply based on a detailed step-by-step description of what the state defines as 'barbaric' and 'gruesome' procedure when the overwhelming evidence shows that procedural abortions are safe.'
The ruling also said if the state wanted to address health outcomes or mental health issues, banning abortion was not the least restrictive way to do it.
The court also pointed out waiting-periods and requiring multiple in-person visits, as outlined by HB 171, actually increased the odds of harm or complications, instead of avoiding them.
'The record demonstrates that compliance with the 24-hour wait period, the multiple in-person visits, and the telehealth ban serve only to delay access to abortion care — thus increasing the odds that the patient will not be able to obtain an abortion or increasing the odds of the very complications this state asserts it wishes to protect against,' the opinion said.
The ruling also said in addition to violating the state's constitutional provisions for privacy, it also impacted physician's free-speech rights by requiring them to provide forms and documents, for example, information about a disputed abortion reversal procedure, that have not been medically verified or supported. They said HB 171 compelled healthcare professionals to give advice contrary to their training and conscience.
Physicians and experts also raised concerns about the state's assertion abortion led to other health care concerns, for example, an increase in breast cancer, which has never been scientifically established.
'Forcing medical providers to give medical advice that they disagree with — like the safety and efficacy of abortion reversal — is a form of compelled-speech triggering protections,' the ruling said. '(Planned Parenthood) asserts that patients may mistakenly understand the consent form to indicate DPHHS's and their provider's approval of abortion reversal.'
The ruling calls such compelled speech egregious because it 'favors one viewpoint over another — namely, the viewpoint that abortion reversal is safe and possible over the judgements and viewpoints of providers that it is unsafe, ineffective and undermines informed consent.'
The court noted the state does not mandate documentation or consent that requires medical providers to discuss the risk of carrying a pregnancy to term.
Finally, the court also called into question the real purpose of HB 140, which mandates ultrasounds and fetal heart tones before an abortion, something that providers said either happens during the course of pregnancy, but may not be medically necessary.
'The court stated it was 'left with the strong impression that the law aims to advance the ulterior motive of discouraging abortion,' which is unacceptable under the law,' the ruling said.
Montana's highest court found that in the case of HB 140, it was exactly substituting the judgment of the state, and the lawmakers who supported it, with the views of the doctor.
'The court's decision further protects what Montanans need and deserve: Legal access to compassionate, timely abortion care, free from government interference. At the same moment as this win for Montanans, anti-abortion politicians continue to threaten to decimate access to care by 'defunding' Planned Parenthood via the reconciliation bill before Congress, in an effort to shut down health centers who provide abortion and other reproductive care. Montanans agree that abortion should remain legal and accessible, and Planned Parenthood of Montana will always do whatever we can to ensure that patients in Montana have access to abortion care,' said Martha Fuller, president and CEO of Montana Planned Parenthood, after the ruling in a statement.
The case was active for several years of litigation, and had district court Judge Amy Eddy sitting in place of former Chief Justice Mike McGrath, who retired at the end of 2024, as well as Judge Shane Vannatta, who was sitting in for Dirk Sandefur, who also retired.
McGrath has since been replaced by Chief Justice Cory Swanson, and Sandefur was succeeded by Justice Katherine Bidegaray.
