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Montana strikes down 3 pro-life laws; Where abortion stands in the state

by | Mar 14, 2024

Montana State Capitol
Photo: David Wilson
CC BY 2.0 DEED

By  Skyler Lee

In a February 29 ruling, District Court Judge Kurt Krueger struck down three Montana pro-life laws as “unconstitutional” that had been in limbo since a preliminary injunction in 2021.

Montana Governor Greg Gianforte initially signed the three pro-life bills HB 136HB 171, and HB 140 into law on April 26, 2021. However, on September 30, 2021, just hours before the laws were set to take effect, Yellowstone County District Judge Michael Mose issued a temporary injunction to halt enforcement of the three laws due to a legal challenge filed by Planned Parenthood.

Analysis of the laws 

Here’s a breakdown of what the three pro-life laws would have accomplished if they would have been allowed to stand:

HB 136

The Montana Pain-Capable Unborn Child Protection Act, also known as HB 136, would have prohibited abortions after 20 weeks, the point at which nerves link pain receptors to the baby’s brain and abortion is certain to cause the baby pain. The act reinforced the concept of fetal pain by pointing out that fetal anesthesia is used when operating on unborn children of this age. The only exception to this law would have been in cases of maternal medical emergency where an immediate abortion was necessary to prevent the mother’s death or “serious risk of substantial and irreversible physical impairment of a major bodily function.” The act would have allowed abortionists found guilty of violating the law to be charged with a felony as well as allowed the woman, the father of the unborn child, the woman’s parent or guardian (if the woman was a minor), or the woman’s spouse to sue the abortionist for civil remedies, including damages and attorney fees.

HB 171

The Montana Abortion-Inducing Drug Risk Protocol Act, also known as HB 171, would have implemented strict protocols on how chemical abortions had to be handled to ensure the woman’s safety and informed consent. The act included:

● A 24-hour waiting period for chemical abortions — Under the law, women would have had to sign a consent form 24 hours before undergoing a chemical abortion, except in cases where immediate abortion was necessary to prevent death or “the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.”

● An in-person requirement — The law would have prohibited abortion-inducing drugs from being distributed by the “manufacturer, supplier, medical practitioner, qualified medical practitioner, or any other person” “via courier, delivery, or mail service,” requiring a woman to be seen in-person by a qualified medical practitioner in order to receive abortion-inducing drugs. During the in-person visit, the abortionist would have had to verify pregnancy, determine the woman’s blood type and Rh negativity, and inform the woman she could possibly see the remains of her child during the abortion process as well as document gestational age, intrauterine location of the pregnancy, and whether the mother was treated for Rh negativity. The act also stated the abortionist would have to be qualified to manage complications as well as initiate emergency transfer and follow up with the woman again in person 7-14 days after the abortion to ensure complete termination and assess bleeding.

● A prohibition on abortion-inducing drugs in schools or on school grounds — HB 171 would have explicitly prohibited elementary, secondary, or postsecondary schools from providing abortion drugs on school grounds.

● A detailed description of reporting requirements — The law would have required abortionists to follow strict instructions regarding reporting adverse events and complications women face during an abortion.

● A detailed description of informed consent requirements — Under the Montana Abortion-inducing Drug Risk Protocol Act, a consent form would have had to inform the woman of the following:

  • Probable gestational age
  • Steps of the chemical abortion process
  • Risks of the specific abortion-inducing drug(s) being used
  • Risks of the chemical abortion process
  • Abortion will result in the death of the unborn child
  • Information about Rh incompatibility and how it could impact fertility without treatment
  • Information about the possibility of abortion pill reversal, including that time is of the essence when deciding to attempt abortion pill reversal, where to find abortion pill reversal, and that studies suggest there is no greater risk of birth defects or maternal mortality after successful abortion pill reversal
  • She could potentially see remains of the child during the abortion process
  • She has a choice and cannot be forced into an abortion
  • She can withdraw consent at any time
  • She can sue if she feels coerced or misled prior to obtaining an abortion and how to access state resources for help with litigation

The act would have allowed abortionists found guilty of violating the law to be charged with a felony and fined up to $50,000, imprisoned up to 20 years, or both. It would have also allowed civil suits and professional sanctions to be brought against the abortionist.

HB 140 

HB 140 would have required that a woman must be given the opportunity to view an active ultrasound and ultrasound images as well as the opportunity to listen to the fetal heart tone before undergoing an abortion. The only exception to this law would have been if an immediate abortion were necessary to save the mother’s life, prevent serious risk of the mother suffering “substantial and irreversible impairment of a bodily function,” or remove an ectopic pregnancy. Had the law gone into effect, any abortionist found guilty in violation of the law would have faced a civil penalty of $1,000.

The ruling 

On Thursday, February 29, almost a year-and-a-half since the initial temporary injunction, Judge Kurt Krueger issued a 19-page ruling [https://idahocapitalsun.com/2024/03/01/judge-strikes-down-a-trio-of-montana-abortion-laws-passed-in-21-as-unconstitutional] in the case of Planned Parenthood and Samuel Dick, M.D. v. State of Montana and placed a permanent injunction against all three pro-life laws to ensure they do not go into effect.

In the decision, Krueger claimed the laws violated Montana’s Constitution by infringing on privacy and were not rooted in medical necessity or science.

In response to the Montana Pain-Capable Unborn Child Protection Act, he cited the 1999 Montana Supreme Court decision in the case of Armstrong v. State of Montana, which found pre-viability abortion to be constitutional under the state constitution’s right to privacy. He also claimed there is no medical consensus about fetal pain at 20-24 weeks gestation and that fetal pain alone is not sufficient for intrusions of privacy.

Judge Krueger even went as far to say, “If that were the case, the state might well be justified in banning pregnancy altogether for fear that the mother (or the baby) could experience pain in childbirth.”

Likewise, he found the common sense and informed consent measures in the Montana Abortion-Inducing Drug Risk Protocol Act would place an undue burden on those seeking abortion, stating the law “violates the right to privacy by imposing numerous and severe burdens on patients and providers, which lack a basis in demonstrable medical science and do not apply to any other medical treatment.” For example, Krueger pointed out that “Montana law does not expressly authorize or prohibit telehealth for any other medical provider.”

Furthermore, Krueger claims offering women ultrasounds and listening to the fetal heart tone is not medically necessary or legally necessary for informed consent.

In his conclusion he writes, “The court finds all three laws incompatible with the text of the Montana Constitution and values it recognizes, and therefore deems them void and unenforceable.”

Current state of abortion in Montana 

Abortion in Montana currently remains legal up to the vague and outdated viability standard, with the exception of abortion necessary to save the life of the mother or prevent serious risk to the mother’s physical health. Abortion in the state also does not require a waiting period, and due to a ruling from the Montana Supreme Court last year, does not have to be performed by a doctor but rather can be performed by a nurse. However, Montana pregnancy resource centers outnumber abortion clinics 19 to 5 and are ready to help bring real and life-affirming choices to mothers in need.

Upcoming rulings 

More Montana pro-life laws are also currently tied up in legal challenges, including:

● HB 7221 — HB 7221 would prohibit D & E, otherwise known as dismemberment, abortion.

● HB 544 — HB 544 would require prior authorization before the state Medicaid program pays for abortions.

● HB 862 — HB 862 would block state funding for abortions except in cases of rape, incest, or when the mother’s life is in danger.

● HB 391 — HB 391 would require anyone under 18 to get notarized written consent from their parent or legal guardian in order to get an abortion.

In fact, the Montana Supreme Court began hearing arguments in the decade-long challenge to the parental consent law HB 391 on Wednesday, March 6, 2024. Pro-lifers pray for better outcomes for all these cases.

Editor’s note. This appeared at Pregnancy Help News and reposted with permission.

Categories: State Legislation