State Supreme Court Strikes Down 2021 Abortion Restrictions

A majority of Montana Supreme Court justices ruled Monday that a trio of abortion restrictions passed by Republican lawmakers in 2021 were unconstitutional, concluding a yearslong legal challenge brought by health care providers and reproductive rights supporters.

If allowed to take effect, the bills would have curtailed abortions after 20 weeks, added regulations to medication abortions and required providers to offer patients the chance to view an ultrasound and listen to a fetal heart tone before filling out a state-written form about their decision. Planned Parenthood of Montana sued to block the legislation from taking effect soon after Gov. Greg Gianforte signed the bills into law. They have been sidelined in court since 2021.

Six justices on the court agreed with a state district court ruling from 2024 finding that the laws impermissibly infringed on Montana’s constitutional right to privacy. Justice Jim Rice was the lone dissenting voice on the court, writing in his own 30-page conclusion that Montana’s foundational abortion rights ruling deserved to be “relegated to the dustbin of history” but stopping short of calling for it to be overturned on legal grounds.

The Monday ruling considered the legal issues based on the current version of the Montana Constitution, noting that the additional abortion rights protections approved by voters in 2024 through Constitutional Initiative 128 is not slated to take effect until July 1.

State attorneys had appealed the lower court’s ruling to the Montana Supreme Court and presented their arguments prior to the swearing in of the two newest members of the court, Chief Justice Cory Swanson and Justice Katherine Bidegaray. Two district court judges, Shane Vannatta of Missoula and Amy Eddy of Kalispell, were appointed to fill the places of now-retired Chief Justice Mike McGrath and former Justice Dirk Sandefur. 

In the majority opinion, penned by Justice Beth Baker, the court opined that protections for procreative autonomy, including pre-viability abortions, are included within the state’s right to privacy, which the justices said was construed broadly by delegates during the state’s 1972 Constitutional Convention.

The ruling reaffirmed the court’s cornerstone 1999 ruling, Armstrong v. State, which originally protected the right to terminate a pre-viability pregnancy in Montana. In doing so, the court rejected arguments from state attorneys that the scope of the Armstrong ruling should be narrowed, particularly as it pertains to the viability standard.

The court defended the fact that Armstrong did not define “viability” by the gestational age of a fetus, reiterating that viability is a medical determination that should be made on a case-by-case basis. By that standard, the Monday ruling reasoned that the state could not enforce the Legislature’s 20-week restriction. 

“The government, whether through the Legislature or the courts, has no role in proclaiming when a fetus is viable over the judgment of a medical provider working with an individual to make private, autonomous decisions about their own health. 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 decisions,” the court wrote. 

Sparring with Rice’s dissent, the majority of justices also maintained that the viability standard correctly balanced the rights of a fetus and a pregnant person. 

“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,” the court found. “In contrast, we find no legal authority for the idea that the State’s interest in preserving fetal life, or the fetus’s right to life, takes precedence over all constitutional protections and dignities of the mother.”

Acknowledging that the right to privacy is not absolute, the ruling laid out an established legal test from past precedent for finding whether a restrictive abortion law is constitutional. Among other factors, the court said the state had failed to demonstrate that the laws at issue would protect pregnant patients from a bona fide health risk. 

In the case of House Bill 136, the 20-week restriction, the state argued that abortions later in pregnancy were associated with more negative mental health consequences for patients. But the justices noted that the prohibition did not make exceptions for a patient seeking an abortion amidst a mental health emergency. 

“The State asserts that poor mental health outcomes, when a patient chooses to have an abortion, are one of the adverse effects it is trying to protect against, yet HB 136 excludes psychological and emotional impacts as a basis for permitting abortion past 20 weeks,” the court wrote. “This suggests that a person’s mental health matters to the State only to prevent abortion, not as a valid reason to obtain one.”

The court found that another challenged law, House Bill 171, also failed to pass constitutional muster by barring the practice of telemedicine abortions with mailed medication and requiring waiting periods for terminations earlier in pregnancy.

“By prohibiting one form of pre-viability abortion and making another more difficult to obtain, the State infringes on a fundamental privacy right,” the court wrote.

Both HB 171 and House Bill 140, which required a provider to offer an ultrasound, would have added paperwork requirements drafted by the state health department. In both instances, the court found that those forms infringed on the right to privacy by inserting “the State’s voice and judgment into the medical room, replacing the qualified medical provider’s judgment with that of the State and impacting a patient’s personal autonomy right to make medical decisions with the health care provider.”

In his Monday dissent, Rice criticized the Armstrong decision for expanding the interpretation of the right to privacy far beyond what he said Montana’s Constitutional Convention delegates and voters intended. 

But, noting the importance of consistent legal precedence, Rice did not describe a legal imperative to overturn Armstrong. Rather, he said, courts should begin to recognize the state’s interest in protecting human life as “compelling.”

“The State has no greater interest than the protection and preservation of human life. Essential to both personal and societal survival, the mere action of ascribing the protection of human life a ‘compelling interest’ is to undermine it by failing to capture its full significance. Preservation of human life is, of course, completely necessary for the survival of our species and our government,” Rice wrote. 

On those grounds, Rice argued that the challenged bills should not be struck down as entirely unconstitutional. Using the example of HB 171, which required waiting periods, Rice said that mandating “a period of reflection before proceeding with a life-altering decision should not reasonably be deemed an infringement upon a woman’s rights,” adding that the court “should be deferential to the Legislature’s effort to encourage and ensure careful decision-making.”

In a Monday afternoon statement, president and CEO of Planned Parenthood of Montana Martha Fuller hailed the court’s ruling as a win for preserving abortion access. 

“The Court’s decision further protects what Montanans need and deserve: legal access to compassionate, timely abortion care, free from government interference,” Fuller said.

In a statement from a spokesperson Monday night, Gianforte described the ruling as an attack on “commonsense measures to protect the life, health, and welfare of mothers and their babies,” and levied criticism against the court’s majority and the Armstrong ruling.

“Clinging to a shaky, outdated ruling and failing to account for the U.S. Supreme Court’s decisions, these activist justices aren’t interpreting the law,” Gianforte said, referring to the federal overturning of Roe v. Wade in 2022. “They’re overreaching, making law from the bench and rejecting the will of Montanans’ duly-elected representatives who make laws.”

The court decision Monday noted that Montana’s privacy right and its related protections for abortion access had not been undermined by the U.S. Supreme Court’s decision to overturn Roe, which stemmed from the federal constitution.

Also on Monday, a prominent policy and advocacy group that opposes abortion filed a  challenge with the Montana Supreme Court, alleging that the text of CI-128 was not properly made available to voters during the 2024 election cycle. The Montana Family Foundation alleged that the state of Montana had not correctly published the text of the proposed amendment, a “constitutionally deficient” process that should make the initiative “null and void.” 

The court had not issued a response to the filing by late Monday afternoon.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.