HELENA, Mont. (TBEN) — The Montana legislature is considering a proposal that would interpret the state’s constitutional right to privacy as not protecting the right to abortion, a move others in several states would repeat to severely limit or ban abortion .
Senator Keith Regier, the sponsor of the proposal, argued Tuesday at a committee hearing that the phrase “individual privacy” in the state constitution should also refer to unborn babies who are individuals who have rights that should not be infringed.
State efforts to regulate abortion became more urgent after the US Supreme Court ruled in June – in Dobbs v. Jackson – to leave abortion rights to the states. The ruling overturned the 1973 decision in Roe v. Wade that found that the due process clause of the 14th Amendment to the U.S. Constitution provided a privacy right that protected the right to abortion.
The Iowa Supreme Court in June cleared the way for lawmakers to restrict or ban abortion in that state, overturning a court decision just four years earlier that guaranteed abortion rights under Iowa’s constitution. Meanwhile, other states, including Minnesota and Maine, are taking measures to protect access to abortion.
Earlier this month, the Idaho Supreme Court upheld a ban on abortions the same day South Carolina judges blocked a law banning abortions after cardiac activity can be detected in the fetus.
The Constitution of Montana states, “The right to individual privacy is essential to the well-being of a free society and may not be infringed without the display of a compelling state interest.”
“Privacy was never intended to be a cover for abortion,” says Bob Leach, a Republican activist who supports the bill that would effectively overturn a 1999 Montana Supreme Court ruling protecting a woman’s right to a viable abortion .
But proponents of abortion rights argued that the states protect privacy and therefore abortion.
Martha Fuller, the president and CEO of Planned Parenthood Advocates of Montana, testified Tuesday that Montana’s constitutional right to privacy is one of the strongest in the nation. She was one of many opponents who said that the courts, not the legislature, should determine what is and what is not in the constitution.
Supporters of Regier’s bill argue that the Montana Supreme Court was wrong in its 1999 Armstrong ruling and that Regier’s bill, which would likely face legal challenge if passed, would allow the Montana Supreme Court to overturn its earlier reconsider statement.
Republican lawmakers also noted that under Montana law, people can be charged with murder for causing the death of a fetus. However, the law contains exceptions for abortions.
The Senate Judiciary Committee did not vote on Regier’s bill on Tuesday.
Under current Montana law, abortion is legal up to 24 weeks of pregnancy. The 2021 legislature passed a law to reduce gestation to 20 weeks, but a judge has blocked its implementation while the legal challenge is pending.
As part of the state’s defense of the 2021 abortion laws, Attorney General Austin Knudsen has asked the state Supreme Court to overturn Armstrong’s 1999 ruling.
The ruling argues that the constitutional right to privacy leads to a right to personal autonomy, including the right to make medical judgments that affect bodily integrity, and a woman’s right to have an abortion before viability is achieved.
Knudsen said that the drafters of Montana’s 1972 constitution did not include the right to elective abortion in the document and argues that the issue should be left to the legislature.
However, a group of Constitutional Convention delegates filed a lawsuit saying their intent was to leave it to the judiciary to determine what was included in Montana’s constitutional right to privacy. The state Supreme Court denied Knudsen’s request to take over the Armstrong ruling before the lower court held a hearing and ruled in the legal challenge of the 2021 abortion laws.
At a March for Life rally at the Capitol last Friday, Knudsen again argued that the Armstrong ruling should be overturned.
Gov. Greg Gianforte also spoke, saying efforts to limit access to abortion should include ways to help families care for children.
Gianforte noted that his legislative proposals this year include an increase in postpartum Medicaid coverage to one year, instead of two months; creating an annual tax credit of $1,200 for parents of children under age 6 who earn less than $50,000 per year; and a $5,000 tax credit for families who adopt children.