Lawmakers and the public heard occasionally heated testimony Tuesday on a proposal aimed at legislating abortion in Montana, the first abortion-related bill debated before a committee this session.
If adopted, Senate Bill 154 would create an act explicitly stating that the Montana Constitution’s right to individual privacy does not guarantee access to abortion or “government funding of abortion.” Despite being less than one page long, debate on the bill sponsored by Sen. Keith Regier, R-Kalispell, lasted more than an hour, including arguments about whether the bill wrongly infringes on the purview of the judicial branch to interpret the state Constitution.
A legal review note written by legislative staff before the hearing indicates “potential conformity issues” between SB 154’s language and the legal precedent set by the Montana Supreme Court in the 1999 Armstrong v. State decision, which found pre-viability abortion to be an expression of medical and procreative autonomy protected under the Constitution’s privacy clause.
Regier said the bill is designed to challenge the court’s ruling in Armstrong. That decision, he said, did not reflect the individual rights of a fetus.
“Following the science since 1973 and Roe v. Wade, there has been advancement in DNA and ultrasound that makes it clear that an abortion is not an individual act. It involves different DNA. It involves a different set of fingerprints. It applies to a different individual,” Regier said.
Some of the 13 bill proponents who spoke Tuesday, including representatives of national anti-abortion groups Student for Life Action and Americans United for Life, encouraged lawmakers to consider the long-debated issue with fresh eyes following the U.S. Supreme Court’s decision last summer in Dobbs v. Jackson Women’s Health Organization. That ruling overturned the decades-old federal protection for abortion and said that states have the authority to regulate abortion. Pre-viability abortion has remained legal and largely unrestricted in Montana since the Dobbs ruling because of the Armstrong decision and because other abortion policies passed by the 2021 Legislature have been temporarily blocked in court.
The state Supreme Court has long affirmed that privacy matters more than politics. The Republican-led Legislature is trying to change that.
Other backers of SB 154 weighed in on the intent of the delegates who crafted the privacy provision in the Montana Constitution in 1972. One proponent, Bob Leach, said he does not believe the framers meant for abortion to be settled under that clause.
“That’s not the intention of privacy. And if the courts can’t define it right, the Legislature needs to take a stand,” Leach said. “If abortion is to be legal in Montana, it should be voted on as such by the people, not just given to an arbitrary court decision.”
Bill opponents generally avoided parsing the motivations of constitutional convention delegates but argued that medical decisions and the choice of whether to give birth is fundamentally within the scope of individual privacy, as the state Supreme Court reasoned in the Armstrong decision. Aileen Gleizer, a board member of the financial assistance group the Susan Wicklund Fund, said her group helps individuals exercise that choice for myriad reasons.
“They might be in an abusive relationship or not ready or housing insecure, or navigating health issues or know that an abortion is the right choice for them,” Gleizer said. “Abortion is quintessentially a private decision, a decision that our Constitution protects and must continue to protect.”
At least two other bill opponents were attorneys in private practice, including Helena lawyer Mike Meloy, who said the bill oversteps the Legislature’s authority by seeking to insert a constitutional interpretation in state law.
“It doesn’t take an expert in constitutional law to know that this bill is patently unconstitutional,” Meloy said before being rebuked by the vice chair of the committee, Sen. Barry Usher, R-Laurel, for not staying within the bounds of the bill, which Usher said was about privacy.
Nonetheless, Meloy continued testifying.
“Really, the sad thing about this bill is that it’s not going to do what all these good folks who are testifying in favor of it think it’s going to do. All this bill is going to do is create a [legal] challenge that is going to succeed because you don’t have the authority to pass this bill,” Meloy said.
“Mr. Meloy, we’re not talking about whether or not we have the authority to pass this bill. We’re talking about this bill,” Usher said.
“Yes, this is very much whether you have the authority to do this,” Meloy said. “What’s going to happen if you pass this bill is the state of Montana and the taxpayers of this state will incur significant attorney’s fees to defend it.”
The exchange with Meloy was not the only time during Tuesday’s hearing Usher reprimanded proponents and opponents for not hewing closely to his reading of the bill. Democrats on the committee repeatedly raised concerns about how Usher was applying those rules and, at times, interrupting testimony he said was not about privacy.
“This bill is two sentences long. The word ‘abortion’ is in the bill twice in those two sentences. ‘Government funding of abortion’ is in the bill in those two sentences. And I think that the opponents are on the bill and I would appreciate it if we could allow them to speak,” said Sen. Jen Gross, D-Billings.
Usher responded that he was trying to keep both proponents and opponents on topic and make sure everyone who showed up to testify had time to speak.
Speaking to Montana Free Press after the hearing, Gross said the Senate Judiciary proceedings went “off the rails” and represented “a breakdown of decorum and civility” that she hoped would not be repeated in future hearings. Those concerns were echoed by Senate Minority Leader Pat Flowers, D-Belgrade, in comments to members of the news media Tuesday.
A spokesman for Senate Republicans did not respond to a request for comment before publication.
The committee has not yet said when it intends to vote on the bill.
Disclosure: Mike Meloy operates the Montana Freedom of Information hotline and has previously represented media organizations, including MTFP, in public information lawsuits.
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