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Lawmakers hear proposed bill that seeks to challenge key Montana abortion ruling

Regier Abortion Privacy Bill
Posted at 6:45 PM, Jan 17, 2023
and last updated 2023-01-17 20:45:14-05

HELENA — Montana lawmakers heard extensive testimony Tuesday on a bill that would challenge a state Supreme Court ruling that established a right to abortion in Montana.

Senate Bill 154, sponsored by Sen. Keith Regier, R-Kalispell, is only two sentences long, but it drew a lot of attention in the Senate Judiciary Committee.

The bill would state, “The right of individual privacy as referenced in the Montana constitution, the Montana Code Annotated, or the Administrative Rules of Montana does not create, and may not be construed as creating or recognizing, a right to abortion or to governmental funding of abortion.”

In 1999, the Montana Supreme Court ruled that constitutional provision does give women the right to an abortion before fetal viability, in the case Armstrong v. State. Since then, that decision has been cited by state judges to limit what restrictions the Legislature can put on abortion.

“The premise here is courts make mistakes,” said Regier. “They’re human; they make mistakes, get more information.”

Regier argued abortion shouldn’t fall under “individual” privacy because it affects both a mother and an unborn child.

“The framers of our Constitution could have left out the word ‘individual,’ but they obviously felt that was important,” he said.

Supporters of SB 154 said the U.S. Supreme Court’s 2022 Dobbs decision, which overturned Roe v. Wade’s finding of a right to abortion under the U.S. Constitution, left the issue in a much different legal environment. They said the state Supreme Court’s ruling is not the final word on the issue.

“You, as our elected state representatives, deciding the question of whether Montana’s right of privacy encompasses a right to abortion is entirely appropriate and within your purview,” said Jeff Laszloffy, president of the Montana Family Foundation.

Gov. Greg Gianforte and Attorney General Austin Knudsen have both called on the Montana Supreme Court to reconsider its ruling in the Armstrong decision.

Opponents of SB 154 said applying privacy rights to abortion was valid and appropriate.

“Decisions about our bodies, our health care, and our families are the most private decisions that we make; it is into that realm that decisions about pregnancy and abortion fall,” said Martha Fuller, president and CEO of Planned Parenthood Advoactes of Montana. “These are decisions that must be made individually, and can only be made by the pregnant person and their health care provider.”

They also argued the bill overstepped the Legislature’s authority, and that it was the judiciary’s role to interpret what a constitutional right means – not lawmakers’.

“All this bill is going to do is create a challenge, that is going to succeed, because you don’t have the authority to pass this bill,” said attorney Mike Meloy.

Regier told MTN he acknowledged the bill would likely be challenged in court if it passes, but he felt it was an issue worth revisiting in the judicial system – particularly in light of the Dobbs decision and of updated medical science since the Armstrong case.

The committee took no immediate action on SB 154.