As Abortion Restrictions Mount, an Unprecedented Legal Landscape Unfolds
In the 2023 legislative session, Republicans introduced 13 bills attempting to limit abortion access, a substantial uptick from the seven anti-abortion bills brought by legislators in 2021, four in 2019, and two in 2017, 2015 and 2013.
The strength of the Armstrong decision has long warded off Republican efforts to curtail the procedure, as Democratic governors and state courts have blocked anti-abortion laws on the grounds of the right to bodily and procreative autonomy granted to Montanans.
Under Armstrong, “a woman’s moral right and moral responsibility to decide, up to the point of fetal viability, what her pregnancy demands of her” is protected as “procreative autonomy” under the right to individual privacy outlined in the Montana Constitution.
A number of abortion restrictions have been blocked by state courts in recent years, and of the 17 anti-abortion bills introduced from 2013 to 2021, seven passed the Legislature but were vetoed by former Democratic Gov. Steve Bullock.
“Our access to abortion in Montana, as we are all keenly aware now, rests on our Montana constitution, not the Roe decision or the Dobbs decision,” Fuller said.
Yet under a Republican supermajority and Gov. Greg Gianforte — the state’s first Republican and first self-proclaimed “pro-life” governor in 16 years — legislation designed to restrict abortion has met greater success in Helena this session.
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While legislators have been able to successfully pass abortion restrictions under a Republican-controlled Legislature and Republican governor, the precedent set by the Armstrong decision has blocked many such laws from going into effect.
The Montana Supreme Court in August upheld a lower court ruling that temporarily blocked three abortion laws passed in 2021 from going into effect while the court system irons out legal challenges. The bills would have banned abortion beyond 20 weeks, eliminated telehealth services for medication abortions and required abortion providers to offer patients the opportunity to listen to a fetal heartbeat or view an ultrasound 24 hours before obtaining an abortion. In the ruling upheld by the Supreme Court, Yellowstone County District Judge Michael Moses blocked the three laws on the basis of Armstrong.
“Pretty much everything else that’s been passed by the Legislature and has gone into effect at this point has been enjoined by the courts,” Fuller said. “The reality on the ground for patients is the same, and that is because we have leaned into our Montana Constitution and gone to the courts to halt enforcement of those unconstitutional laws.”
Already, House Bill 575, the 24-week abortion ban signed by the governor this month, has been temporarily blocked by Lewis and Clark County District Court Judge Mike Menahan over concerns that the legislation “impermissibly infringes on Montanans’ constitutional right to a pre-viability abortion.”
Menahan this month also temporarily blocked a rule issued by the Department of Public Health and Human Services (DPHHS) after Planned Parenthood Federation of America, the Center for Reproductive Rights, and the ACLU of Montana filed a lawsuit against the state on behalf of Montana’s abortion providers. The DPHHS rule would have required that physicians show prior documentation proving that an abortion is “medically necessary” before the state’s Medicaid program can authorize payment for the procedure, erecting a significant barrier for low-income Montanans seeking abortion care. House Bill 544 and House Bill 862, which the governor is expected to sign, would codify similar restrictions into Montana law.