For anti-abortion activists in Montana, next steps are unclear

Days after the U.S. Supreme Court eliminated federal protections for abortion access, Montana’s anti-abortion movement is struggling to find its path forward.

Curbing abortion rights has long been a goal for Montana’s Republican-controlled Legislature, the state Republican Party and Republican Gov. Greg Gianforte. As recently as January, anti-abortion activists packed the rotunda of the State Capitol, cheering for Gianforte and other Republican elected officials who promised to advance their shared agenda. 

“For too long in Montana, your voices haven’t been heard in the governor’s office,” Gianforte told the crowd. “For too long, measures protecting life have been met with the veto pen.” 

But even after the fall of Roe v. Wade, which legalized abortions nationwide for nearly 50 years, Republicans’ road to curtailing abortion rights in Montana is full of obstacles. The largest of those hurdles is another decades-old legal decision — the Montana Supreme Court’s 1999 ruling in Armstrong v. State, which legalized abortion under the state Constitution’s right to privacy. As long as the state’s Armstrong decision stands, abortion will likely remain legal in Montana. 

The bind for Montana’s anti-abortion movement became clear last week. As abortion opponents across the country celebrated, anti-abortion leaders within the state laid out a list of roadblocks.

“Here in Montana, our work is just beginning,” said Montana Family Foundation President Jeff Laszloffy, a prominent abortion opponent and lobbyist, in a Friday statement. With abortion policy now left up to individual states, Laszsloffy said, “[w]e must also amend our state Constitution, or nullify the Armstrong decision, which is, in essence, Montana’s version of Roe v. Wade. Only then, will Montana’s smallest and most vulnerable citizens truly be safe.” 

Laszloffy did not respond to an interview request from Montana Free Press.

With Montana one of roughly two dozen states where abortion is expected to remain legal for the foreseeable future, Montana abortion providers are ramping up operations in anticipation of out-of-state patients traveling for their services, creating the likelihood that the post-Roe landscape will lead to more abortions being performed in Montana, not fewer.  

“Blue Mountain Clinic, along with All Families Healthcare, Planned Parenthood of Montana, and the Susan Wicklund Fund, Montana’s statewide abortion fund, are working together to protect and expand access to abortion,” said Nicole Smith, executive director of Missoula’s Blue Mountain Clinic, in a Monday statement. 

“We will continue providing this essential healthcare to Montanans and we are ready to serve an influx of out-of-state patients,” she said. “Along with countless other Montanans, we stand united to protect and care for each other, right here at home.”

WHAT THE LEGISLATURE CAN DO

As it did last year, Republican lawmakers can continue to propose and pass bills during the upcoming 2023 session that would restrict access to abortion. But the Legislature’s prior package of abortion policies — putting new red tape on medication abortions, banning abortions after 20 weeks of pregancy, and requiring that providers offer patients an ultrasound before the procedure — have been stalled in court since last fall. A district court judge in Billings decided the laws could not take effect while the lawsuit filed by Planned Parenthood of Montana proceeds. 

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Montana Attorney General Austin Knudsen appealed that injunction to the state Supreme Court, asking the justices to “allow these commonsense, democratically enacted laws to take effect.” In January court filings, Knudsen explicitly called on the court to reverse the Armstrong decision in order to allow the state more leeway in how it regulates abortion, calling the 1999 decision “the wellspring of the trouble.” The state court has not yet responded.

The ongoing litigation between the state and Planned Parenthood of Montana could last for many more months, pushing any verdict on Armstrong further down the road. Future abortion laws passed by the Republican legislative majority would likely also be challenged by abortion providers, creating a backlog of cases and delaying clear political change for abortion opponents.

The prospect of slow and arduous litigation appears to have had a chilling effect on other avenues for the anti-abortion movement, including the possibility of a legislative special session to pass new abortion policies. In May, after a draft opinion of the U.S. Supreme Court’s decision to overturn Roe made national headlines, Gianforte told a caller on a KGVO radio program he “would be happy to call a special session” if Roe was overturned, but added a substantial caveat: “[I]f we have a path that is defensible in the courts here in Montana and we have a consensus in the Legislature.” 

Since the Roe ruling was handed down, the governor’s office and Republican leadership in the Legislature have refrained from mentioning a special session. In a statement released Friday, Gianforte said he was “in discussions with legislative leaders on next steps as we work to protect life in Montana.”

In a joint statement issued the same day, Sen. President Mark Blasdel, R-Kalispell, and House Majority Leader Sue Vinton, R-Billings, directed attention back to Montana’s courts. 

“As the debate over abortion shifts to the states, all eyes in Montana need to be on our own judicial branch of government,” the statement said. “Montana judges should rule based on the text of our state constitution, which doesn’t mention abortion at all, and overturn the activist and erroneous Armstrong decision.”

Gubernatorial press secretary Brooke Stroyke on Tuesday declined to answer a specific question via email about whether the governor still supports a special session to pass abortion policy.

“The governor is proudly pro-life, and is in discussions with legislative leaders on next steps as they work to protect life in Montana,” Stroyke said. She declined to make Gianforte available for an interview.

Kyle Schmauch, communications director for state Senate Republicans, said Tuesday that “legislative Republicans are committed to proceeding strategically to protect pre-born children in Montana.” He added that discussions about the Legislature’s next steps “continue to happen” and that, with the prior session’s abortion restrictions still pending, “all eyes should be on the Montana Supreme Court.”

Democrats in the Legislature cast doubt on the likelihood of Republicans convening a special session to hammer out abortion policy. 

“[I]t’s like the dog that caught the car,” said House Minority Leader Kim Abbott, D-Helena, in a Monday statement to MTFP. “They know they’re out of step with the majority of Montanans who oppose a blanket ban on abortion. It seems like they want to avoid talking about that. I would, too.”

CHANGING THE CONSTITUTION

With the Armstrong ruling and Montana’s constitutional privacy right blocking Republican efforts to restrict abortion, some lawmakers have tried to amend the state Constitution to make abortion explicitly illegal. 

Last year, Rep. Caleb Hinkle, R-Belgrade, suggested changing the Constitution to define “person” as “all members of mankind at any stage of development, beginning at the stage of fertilization or conception.” In order to pass, a constitutional amendment requires the support of at least two-thirds of all 150 state legislators. If approved by the Legislature, such an amendment would be put before voters during the next election. Hinkle’s 2021 bill passed by 30 votes in the state House but failed to muster the necessary margin in the Senate, with two Republicans dissenting. 

If Montana Republicans pick up additional seats in the November general election, another constitutional amendment to ban abortion could have a stronger chance of passing. The bill would also have better prospects if it received unified Republican support, an unlikely scenario if the current makeup of moderate and conservative Republicans remains unchanged.

Even if Republican lawmakers agree on a constitutional amendment to ban abortion, Montana voters are not guaranteed to support the proposal. Across the country, 61% of the population believes abortion should be legal in all or most cases, according to polling by the Pew Research Center conducted in 2022. Republicans are more likely to support making abortion illegal in all or most cases, but 56% of Montanans told Pew in 2014 that abortion should generally remain legal, with 5% of respondents undecided.

There are other ways for lawmakers and Montana voters to revise the Constitution. The Legislature can propose a Constitutional Convention, the first since Montana’s current Constitution was written in 1972, if it has affirmative votes from two-thirds of legislators. Like the constitutional amendment process, the question of whether or not to hold a convention would then be put before voters. 

Without a prompt from the Legislature, Montanans get to vote on whether to hold a Constitutional Convention every 20 years. Voters rejected that option in 1990 and 2010 — the next scheduled vote on if Montana should change its guiding legal document will be in 2030.

WHERE THE STATE SUPREME COURT STANDS

An ongoing race for a seat on the Montana Supreme Court between sitting Justice Ingrid Gustafson and Public Service Commission President James Brown is another factor that advocates and politicians cast as important for the future of Montana’s abortion landscape.

Gustafson, a five-year incumbent of the court, and Brown, a private practice attorney, have refrained from publicly discussing their stances on the Armstrong case — judicial races are nonpartisan and the state’s Code of Judicial Conduct prohibits candidates from taking public positions on issues that might come before the court. But Republican officials with staunch anti-abortion positions, including Knudsen and Gianforte, have publicly endorsed Brown. That display of partisan support, including a formal endorsement from the state Republican Party, has helped push Democrats and abortion-rights advocates toward Gustafson. 

“We also must re-elect, we must retain Ingrid Gustafson to the Supreme Court,” said Susie Reber Orr, a member of the Missoula County Democrats, speaking to a crowd protesting the overturning of Roe v. Wade in Missoula on Sunday. “The Supreme Court is a nonpartisan race, but the Republicans have made it very partisan.”

Brown did not respond to emails seeking comment about his stance on Armstrong on Tuesday and Wednesday. In a previous interview with MTFP, Brown said he would not be seeking judicial office “[i]f I didn’t think that I could be fair and impartial as a judge.”

In response to emailed questions, Gustafson did not directly address the Armstrong precedent, but said the rights afforded by the state Constitution “cannot be cast aside.”

“​​As a Justice on the Montana Supreme Court, I work very hard to uphold the values and individual rights enumerated in Montana’s Constitution,” Gustafson wrote. “I am not able to comment on how I would rule on any particular legal issue which may come before the court, as that would violate Montana’s Code of Judicial Conduct. When matters come before the court I look to our Constitution, research legal precedent and law, and then impartially apply the relevant law to the facts of record.” 

In the three-way June primary race between Gustafson, Brown, and Helena district court judge Michael McMahon, Gustafson received roughly 48% of the vote. Brown received the second-highest amount of support with roughly 36% of the vote, positioning Gustafson and Brown to face off on the general election ballot in November. 

Another sitting justice, James Rice, is also running for re-election this fall against Bill D’Alton, a private practice attorney from Billings. Rice, the longest-serving member of the state Supreme Court, received roughly 75% of the vote during the June primary. D’Alton earned about 24%. Both will be on the ballot in November.

Even if abortion-rights advocates are correct that Brown would vote against upholding Armstrong, it’s unclear how his election might change the court’s decisions on abortion laws.  

Compared to the U.S. Supreme Court, Montana’s seven justices are not so obviously placed into conservative- or liberal-leaning camps. While some justices, like former Republican lawmaker James Rice and former Democratic Attorney General turned Chief Justice Mike McGrath, have previously held elected office, others did not have partisan elected positions prior to becoming judges. Unlike the federal court system, Montana’s justices are not appointed to lifetime positions by partisan governors. If picked by the governor to fill a temporary vacancy on the court, justices must run to retain their seat during the next election cycle and every eight years thereafter.

The court’s track record on abortion cases also does not clearly predict how Montana’s justices might rule on Armstrong or other abortion issues — the court has ruled on only two abortion cases in recent years. 

In 2015, the state Supreme Court reversed a district court’s decision to throw out a parental notification law for minors seeking an abortion. The district court judge in Helena said the law was similar to another that had been declared unconstitutional nearly two decades prior, but justices Jim Shea, Beth Baker, Jim Rice and Laurie McKinnon disagreed, saying the laws were different and merited continued litigation. All of those justices remain on the court today — the lone dissenting justice in that decision’s five-judge panel, Pat Cotter, has since retired.

Justices were also divided in a 2019 decision in Weems v. State, a case in which a certified nurse practitioner sought the ability to perform early-term abortions. When a district court judge allowed Weems to continue practicing the procedure while the case proceeded, the state attorney general’s office appealed to the state Supreme Court. Justices Baker, McGrath, Gustafson and Dirk Sandefur formed a majority and agreed with the district court ruling — justices Rice, Shea and Laurie McKinnon dissented. All of the deciding justices remain on the bench.

FOR ANTI-ABORTION ADVOCATES, ROE IS ‘NOT THE FINAL’ STEP

When she looks at the post-Roe political and legal landscape, Lianna Karlin doesn’t seem particularly happy. 

Karlin, the president of Right To Life Of Montana, has been involved in anti-abortion activism in the state for decades. In a Monday interview, she said she was glad to see Roe v. Wade overturned. But from her perch in Montana, Karlin said she’s disillusioned about the rift that may develop between states where abortion is illegal and legal. 

“Looking down the road at the [U.S. Supreme Court] decision that was made, and dividing our country further by making it state by state, to me it is an obvious parallel to the time before the Civil War,” Karlin said. “It’s a similar kind of a situation.” 

Karlin said she’d like to see the U.S. Congress pass a ban on abortion nationwide. But until then, and without any immediate likelihood of abortion being outlawed in Montana, she said her group’s goals remain largely unchanged: mobilize grassroots support for the anti-abortion cause and help elect like-minded candidates up and down the ballot. She said having Gianforte in office has been “a blessing,” and that she has her sights set on supporting legislative candidates, Brown’s bid for a seat on the state Supreme Court, and Republicans who are running to represent Montana in Congress.

As abortion rights groups put on large-scale protests around Montana in response to the overturning of Roe, Karlin said her group isn’t planning to compete for the spotlight. She’d rather keep a low profile while tempers are high.

“Obviously people are expecting us to be celebrating, and we’re not going to be up in anyone’s face. Why provoke more anger and more division?” she said. Mostly she wants to stay focused on opposing abortion in Montana, acknowledging that the road ahead will likely be long and slow.

“We don’t know exactly how this is going to play out,” she said. “We do know that Roe v. Wade being overturned is a big step — but it’s not the final one.”

This article was updated June 29, 2022 to include description of an abortion case the Montana Supreme Court adjudicated in 2019.