In 1999, James Nelson spent a lot of time thinking about the legal concept of privacy — specifically, “the right to be let alone” debated by delegates during Montana’s 1972 Constitutional Convention and later enshrined in the state’s Declaration of Rights. The guarantee of protection from certain government interference remains there, codified in black and white, as it did when Nelson, then a justice on the Montana Supreme Court, was mulling how exactly that provision applies to a woman’s ability to access an abortion.
“The Con-Con delegates were very clear. They had some real concerns about the right of privacy and government intrusion into matters that should belong to an individual,” Nelson, 77, said in a recent interview with Montana Free Press. “And the court, up to a point, has always interpreted the right of privacy in that fashion.”
The case under consideration by Nelson and the state Supreme Court was Armstrong v. State, a legal standoff that resulted in Montana joining a cadre of states that may be considered, depending on your politics, either sacred or morally repugnant — the places where abortion would remain legal and protected even if the federal standard of Roe v. Wade was overturned.
The unanimous Armstrong opinion, written by Nelson and issued in October 1999, cemented the right to obtain an abortion in Montana, deriving the protection of “procreative autonomy” from the same provision that shields Montanans from government interference in other social spheres, such as surveillance and the unwarranted disclosure of personal information. In doing so, the court also made clear that it was not interested in subjecting abortion access to the “prevailing political winds.”
“The right of privacy is permanent,” Nelson told MTFP. “The concept that a woman’s right of choice is governed by her values and by the health care information she gets from her health care provider. That, in my view and in the court’s view at the time, was permanent.”
The Armstrong opinion has held strong over the past two decades, in the eyes of conservatives seeking to curtail abortion access and progressives who support the right to reproductive autonomy alike. But the ruling is expected to soon face a barrage of challenges after Republican lawmakers passed a range of abortion regulations and restrictions during the legislative session, three of which were signed into law Monday by Gov. Greg Gianforte, the state’s first self-identified pro-life governor in 16 years.
For social conservatives, the session has been a long-awaited opportunity to advance what many consider essential policies. When the Legislature adjourns and court battles potentially begin, several new laws may be used to probe for cracks in Armstrong’s broad precedent.
“There hasn’t really been anybody in the state that has been willing to take that on,” said Katie Glenn, government affairs counsel for Americans United for Life, a national anti-abortion policy group. “And it looks like that may be coming.”
A CHANGING LANDSCAPE
In the last three years, 45 states have enacted legislation regulating abortion, according to a study published in the Journal of the American Medical Association in February. Nearly 90% of the 256 laws had to do with abortion restrictions, such as increasing the number of requirements a patient must complete before accessing an abortion, or limits on abortions after a certain gestational age of the fetus. Some of those laws could lead to wholesale bans on abortion if Roe v. Wade is ever overturned by the U.S. Supreme Court.
Montana has not enacted such laws. In fact, the state has long stayed out of the spotlight created by legal battles over abortion access, largely because two consecutive Democratic governors, Brian Schweitzer and Steve Bullock, consistently vetoed restrictive legislation passed by lawmakers beginning in 2003. Last year, conservative urgency about reproductive issues was, in part, what motivated voters to support Gianforte’s bid for the governor’s seat against former Lt. Gov. Mike Cooney, an unapologetic advocate for a patient’s right to choose.
Following Gianforte’s election, the change in tone from the governor’s office on abortion issues was not subtle. During his State of the State address, the newly sworn-in governor called on legislators to send two bills to his desk: one banning abortions after 20 weeks and another mandating that physicians provide life-saving care to newborns. Opponents have countered that the latter measure is redundant under current law and designed purely to inflame political divisions.
“We must protect the lives of the most vulnerable: unborn children,” Gianforte said in January. “These are necessary, compassionate measures where we should all be able to find common ground among us. And I will sign both of them into law.”
The bills Gianforte called for, House Bill 136 and House Bill 167, are among a slate of abortion-related bills prioritized by Republican lawmakers since January and passed along party lines. Throughout the legislative process, proponents stressed what they characterized as a moral imperative to enact many of the proposals, including a bill to add copious restrictions on medically induced abortions in the first 10 weeks of pregnancy. Opponents believe many of the bills, because of the Armstrong decision, are unconstitutional and forecast their failure in the courts after costly legal battles.
“[Armstrong] severely limits the restrictions the Legislature can place on the right to abortion,” said Caitlin Borgmann, executive director of the ACLU of Montana, in testimony against House Bill 171, the restriction on early term medical abortions. “Restrictions on abortion in the pre-viability period will be overturned in court unless the state can show that the law is justified by a compelling state interest and that the law is narrowly tailored to effectuate only that compelling interest.” The proposed measure, Borgmann argues, falls far short of those standards.
In hearing after hearing, opponents cited the Armstrong opinion as the legal basis for their objections. Some Republican lawmakers, for their part, downplayed the weight that Armstrong or any court precedent should carry in deliberations on new bills.
“The constitutionality of something is subjective until it gets in front of the Supreme Court,” said Rep. Derek Skees, R-Kalispell, during a debate on several abortion bills in the House Judiciary Committee. “We have no idea how the courts can rule on things that are coming before us. All we can do is what we assert is correct, because all of us are interpreters of the Constitution as well.”
As of Monday, lawmakers had passed five bills that would implement various restrictions on abortions, including a requirement that physicians offer an ultrasound to patients before a procedure and another that limits insurance coverage for abortion in general.
Gianforte signed three of them, HB 140, HB 136 and HB 171, into law during an afternoon ceremony.
“You’ve worked tirelessly to get these bills across the finish line,” Gianforte said, addressing the bill sponsors and other Republican lawmakers. “But there were many who served in this building before us who championed the unborn. People who worked hard to advance the cause of life. Unfortunately, their efforts were vetoed. But not today.”
POLITICS VERSUS PRIVACY
The court’s 1999 opinion was the culmination of a law the Montana Legislature had passed five years earlier that prohibited physician assistants from providing abortions. At the time, a woman named Susan Cahill, in Flathead County, was the only physician assistant in Montana doing such procedures, and she argued there was no medical reason for the prohibition. The court sided with Cahill and other physicians, concluding that lawmakers had failed to introduce valid medical arguments as to why a physician assistant or other qualified health care provider could not perform an abortion.
“Not only is there sort of a lack of a health interest in the restriction at issue in that case, but it was passed under the guise of protecting patients’ health,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, the national group that represented Cahill and a group of physicians, in a recent interview. “So lawmakers are saying they’re doing this to protect a patient’s safety, but it’s really because they don’t like abortion. And that’s absolutely not a valid reason to restrict a person’s right to this essential health care.”
Nelson and the court found in 1999 that a law making it harder to receive an abortion, without medical justification, infringes on a patient’s ability to exercise their medical autonomy.
Shy of a compelling state interest, the court wrote, “the legislature has neither a legitimate presence nor voice in the patient/health care provider relationship superior to the patient’s right of personal autonomy.” Even less defensible, it said, is when “the legislature thrusts itself into this protected zone of individual privacy … because of prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values.” In those scenarios, the court wrote, “the state’s infringement of personal autonomy is not only constitutionally impermissible, it is, as well, intellectually and morally indefensible.”
Throughout its ruling, the court held that personal autonomy should be protected from the political intentions of lawmakers, grounding its reasoning in both philosophical arguments and the expressed intentions of the delegates who had crafted Montana’s Constitution 20 years earlier.
“Even before Armstrong, we’ve read the right of privacy in our Constitution to mean something different than the ‘liberty’ in the federal Constitution that the U.S. Supreme Court applies in these areas,” said Anthony Johnstone, a constitutional law professor at the University of Montana. “Probably the most common use of the right of privacy in Montana is to supplement Montanans’ rights against unreasonable searches or surveillance. But another thing that the right of privacy can mean … [is] a form of autonomy or liberty, a zone of personal liberty that government could not enter without good reason.”
WHAT COUNTS AS ‘COMPELLING’
In both federal and state courts, conservative legal groups have sought to expand their arguments for which abortion restrictions are medically necessary, or created in accordance with the best interest of a patient’s health and safety. Legal challenges have tried to make abortion providers meet a range of increased standards, such as having admitting privileges at nearby hospitals or requiring facilities to have hallways wide enough to fit a surgical gurney — all examples of what advocates for abortion access deem unnecessary and burdensome requirements on providers.
In Montana, courts have previously blocked a parental notification law for minors seeking abortions and a policy that prohibited advanced practice registered nurses from providing such procedures, ruling in both cases, as recently as 2018, that the state had not presented a compelling interest. This year, several new bills are expected to test for weak points in that precedent.
“As much as it seems that Armstrong covers all the things all the time, courts all over the country and at the federal level have found compelling interest related to health and safety,” said Glenn of Americans United for Life, who testified on behalf of HB 171, the sprawling proposal that would also prohibit abortion-inducing medication from being mailed to patients. “What that looks like in Montana, we’ll have to see.”
Some bills passed by the Legislature may not see immediate legal challenges. House Bill 140, which requires physicians to offer an ultrasound to patients before an abortion, does not land squarely within the category of a person’s ability to access an abortion and does not mandate that an ultrasound be provided, both of which could be seen as reasons to bring a challenge under Montana’s privacy provision. Another measure, HB 167, The Born-Alive Infant Protection Act, creates a ballot referendum for 2022, which does not require Gianforte’s signature, that opponents primarily characterize as a political messaging tactic to introduce an inflammatory issue into the election cycle.
Other bills, including HB 171 and HB 136, the latter of which largely bans abortions after 20 weeks of pregnancy, may be more likely to fall within the parameters that the Armstrong decision created. Both measures propose infringements on a patient’s right to access legal medical services, with lawmakers citing a range of medical and moral arguments. As in previous cases, the merits of each side will have to be considered by judges.
THE STATE’S ROLE
As Montana enters into a period of Republican control of the legislative and executive branches, as well as the attorney general’s office, Glenn said there seems to be excitement in the state about the ability to pass “bold” legislation related to abortion.
“What we’re seeing politically is that for the first time in a while, there’s unified government,” she said. “For pro-lifers who are frustrated about vetoes [from past Democratic governors], they kind of feel like they now have the opportunity to test the contours of the Armstrong case, and even federal law, in a way that they have not been able to before.”
Despite the court being the final arbiter of any impending legal fights, former Justice Nelson said it was precisely this type of uncertainty, sparked by changing political tides, that Armstrong aimed to prevent.
“When I was writing it, I was concerned about the woman’s right of choice, looking into the future,” Nelson told MTFP. “Roe v. Wade was super controversial on the day it was handed down, and it has gotten no less controversial … and that’s why Armstrong’s very important,” he said, adding that the court’s opinion intentionally grounded its reasoning in Montana’s Constitution rather than relying on federal standards outlined by Roe.
While some of the Legislature’s current bills focus on seemingly narrow slices of policy and medical regulations, Nelson and progressive legal advocates say the court’s role is to consider such cases in context of constitutional privacy protections, with careful consideration of the state’s involvement in reproductive issues.
What is at stake, said Schneller of the Center for Reproductive Rights, is not only “this isolated right just to access abortion care … it is the umbrella right to make this decision one way or the other. Is the person going to continue their pregnancy or are they going to have an abortion for whatever reason?” she said. “So if the state doesn’t protect the right to make the decision, the state is the one making that decision. And that should not sit well with lawmakers, many of whom would not want the state to be making important decisions about their own lives.”
That, in essence, is the concern that roots the court’s sweeping opinion in Armstrong, a ruling that Nelson hopes will continue to resonate in 2021 and beyond.
“Unless fundamental constitutional rights — procreative autonomy being the present example — are grounded in something more substantial than the prevailing political winds,” the Armstrong ruling states, “Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.”
This story was updated April 26, 2021, to reflect the signing of three bills by Gov. Gianforte on Monday afternoon.
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