Gov. Gianforte Urges Montana Supreme Court to Reconsider Armstrong Decision

Armstrong V. State is the 1999 decision that constitutionally protects abortion in Montana

By Keith Schubert, Daily Montanan
Governor Greg Gianforte attends a ribbon cutting ceremony for the opening of Somers Beach State Park on the north shore of Flathead Lake on May 12, 2022. Hunter D’Antuono | Flathead Beacon

In the light of the recent Dobbs decision, Gov. Greg Gianforte asked the Montana Supreme Court on Tuesday to accept new briefings from the public as the high court weighs the legality of abortion in the state.

The Dobbs decision overturned Roe vs. Wade and federal access to abortion via the right to privacy — giving the states the power to regulate abortion healthcare. In Montana, the right to abortion care is protected by the 1999 Armstrong vs. State decision, which extended Montana’s heightened right to privacy to include medical care, including abortion.

Gov. Gianforte argued in the brief that because the U.S. Supreme Court decided to overturn Roe, Armstrong can no longer inform an interpretation of the Montana Constitution.

“[B]ecause of Dobbs, the Court must necessarily revisit its decision in Armstrong. As part of that review, the Court will need to re-assess, without Roe, the limits of its authority to interpret a constitutional right to include that which was expressly intended and believed to be excluded from the Bill of Rights, and instead reserved to the Legislature,” Gianforte wrote in his motion.

The filing continued, “Given the seismic shift in the legal landscape surrounding abortion jurisprudence nationally, and that preliminary briefing presented to this Court regarding the merit of Armstrong was uninformed by Dobbs, more robust supplemental briefing would meaningfully assist the Court in its task of impartially navigating this fundamental policy question under the Montana Constitution.”

President and CEO of Planned Parenthood of Montana, Martha Fuller, said in a statement Tuesday that Gianforte wanting the Legislature to have the final say on abortion is “an insult to Montanans and our Constitution.”

“Extremist politicians in Montana and elsewhere have been very clear about their intentions: to ban abortion. The Governor’s motion and brief are an attempt to introduce the Dobbs decision into a case where it has no relevance,” the statement read. “Montanans’ constitutional right to privacy protects the right to seek and obtain an abortion–full stop. This was the case before the Dobbs decision and it remains the case.”

Gianforte’s filing is the latest in the legal saga between Planned Parenthood of Montana and the State. In October, Yellowstone County District Judge Michael Moses temporarily blocked the implementation of three abortion bills pending a legal challenge by Planned Parenthood of Montana. The decision was ultimately appealed by Attorney General Austin Knudsen, who in his appeal also asked the court to overturn the 1999 Armstrong decision.

The laws placed under injunction by Moses were House Bills 136, 140 and 171. Respectively, the bills ban abortion after 20 weeks gestation, require doctors to offer ultrasounds to patients seeking an abortion and ban prescribing medication for abortions by mail, while also making it more challenging to get the medication prescribed in person.

On Tuesday, Gianforte got involved in the case through an amicus brief supporting the State of Montana. In the brief, Gianforte urged the court to allow the legislature to regulate access to abortion care in the state.

“The prerogative to establish such policy (surrounding life) has been long understood in Montana to belong to the legislature, not the executive or judicial branches,” Gianforte wrote in the amicus brief. “In light of Dobbs, the Montana Supreme Court must reconsider Armstrong and return the issue to the legislature, where it rightly belongs.”

This story originally appeared in the The Daily Montanan, which can be found online at dailymontanan.com.

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