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Court debate over new and old pro-life laws heats up in Montana

by | Feb 14, 2022

By Dave Andrusko

Pro-and anti-life proponents are dueling over both new—three pro-life laws enacted in 2021—and old–a decades old parental notice law.

According to Montana Public Radio, the parties are meeting in court today to address the two older laws.

“The case revolves around two laws challenged by Planned Parenthood of Montana,” MPR’s Shaylee Ragar wrote. “One was approved by ballot initiative in 2012 and another by the State Legislature in 2013. They require parental consent and parental notification when a minor is seeking an abortion in Montana. The consent law was put on hold by the court; the notification requirement remains in effect.”

Planned Parenthood is also challenging three other laws passed during the 2021 legislative session. Back in October District Court Judge Michael Moses “block [ed] the laws while a legal challenge filed by Planned Parenthood of Montana seeking to permanently overturn them plays out,” according to Holly K Michels.

Last month Montana Attorney General Austin Knudsen asked the state Supreme Court to vacate Judge Moses’ order that blocks the enforcement of three state laws that protect the health and safety of women who are considering or seeking an abortion.

The laws include House Bill 136—the Montana Pain-Capable Unborn Child Protection Act. This bans abortions performed on pain-capable unborn children who are 20 weeks gestational age. House Bill 140 offers the opportunity for abortion-minded women to view an ultrasound of their unborn child. HB171 requires informed consent for a woman undergoing chemical (or “medication”) abortions and have an in-person visit. It also prohibits women from accessing medication abortion through the mail and through telehealth.

In an amicus brief filed by AG Knudson, he wrote that “The lower court bungled the preliminary injunction standard, wrongly subjected each of the new laws to ‘strict scrutiny,’ and manifestly abused its discretion by failing to properly consider and assess the State’s evidence and arguments – each on its own justifying a Supreme Court reversal.”

In its brief, the State of Montana argued “All three laws unquestionably enhance the health and safety of Montana women. And they represent basic regulations of the practice of medicine—bread-and-butter exercises of [state government].But Planned Parenthood’s business is abortion, and these laws require modest changes to its business practices. So Plaintiffs asked the courts to do what they couldn’t through the legislative process—save them the trouble of providing better care to Montana women.”

“Montana’s attorney general is also asking the state Supreme Court to overturn a 1999 opinion that found the state constitution’s right to privacy guarantees a woman’s access to an abortion — the opinion Planned Parenthood is using to challenge three new abortion laws,” the Associated Press’ Amy Beth Hanson reported.

In the Armstrong decision, handed down in 1999, “Justice James C. Nelson said the constitutional right to privacy led to a right to personal autonomy that included the right to make medical judgments affecting bodily integrity and a woman’s right to obtain a pre-viability abortion, the brief states,” according to the AP’s Hanson.

The state of Montana countered “In reversing the district court’s order, the state Supreme Court should also overrule the 1999 Armstrong precedent. This decision invented from whole cloth a state constitutional right to elective abortion even though the framers of the Montana Constitution were perfectly clear that decisions about abortion policy are to be firmly in the hands of the Legislature.”

Categories: State Legislation
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