A bill to statutorily define Montana’s constitutional right to privacy as not protecting the right to abortion passed a key vote in the Senate chamber Wednesday, leaving one more hurdle before it can continue its trajectory to a House committee. 

Senate Bill 154, sponsored by Sen. Keith Regier, R-Kalispell, was approved by a 28-21 vote with six Republican defections from their caucus after less than 10 minutes of debate. The bill previously passed out of the Senate Judiciary Committee strictly along party lines, with all seven Republican lawmakers voting in favor and four Democrats voting no. 

In order to pass on to the House chamber, a majority of the Senate will have to again approve the bill in a final floor vote, which typically takes place the next day the Legislature is in session. 

The constitutional provision Regier’s bill would interpret states that “the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” If adopted, the bill would contradict the 1999 Montana Supreme Court ruling in Armstrong v. State, which found access to a pre-viability abortion from a chosen provider to be an appropriate exercise of medical privacy and “procreative autonomy” guaranteed by the state Constitution. 

In statements Wednesday, Regier expressed his belief that a fetus is an individual that should be afforded individual rights, an argument he introduced during the bill’s January committee hearing

“There had to be a reason why the framers put ‘individual’ in on that right to privacy. And that’s the whole premise of the bill. Abortion is not an individual event. We know that,” Regier said.

“I personally am adamantly pro-life. But ladies and gentlemen of this committee, privacy is privacy. Individual privacy is privacy. If enacted, this bill would be unconstitutional.”

Sen. Wendy McKamey, R-Great Falls

Addressing the question of the Armstrong ruling, Regier said court rulings don’t always withstand the test of time.

“I know that some courts have determined that a right to privacy means a right to abortion,” Regier said. “I want to remind you that courts have made wrong decisions in the past. From Dred Scott to eugenics to Roe v. Wade, the court has made wrong decisions that were later corrected.”

Democrats and some Republicans took issue with Regier’s bill, casting it as an infringement on privacy and a lightning rod for expensive legal challenges. 

“I personally am adamantly pro-life. But ladies and gentlemen of this committee, privacy is privacy. Individual privacy is privacy. If enacted, this bill would be unconstitutional,” said Sen. Wendy McKamey, R-Great Falls, in a brief statement on the Senate floor. 

Democrats echoed that concern, adding that the bill goes against the message voters sent last November when they rejected Legislative Referendum 131, a ballot issue that would have required life-saving medical intervention for all newborns, including those with fatal diagnoses. Democrats and LR-131 opponents interpreted that outcome as a win for protecting reproductive health care from government interference.

“The majority of Montanans do not support restricting access to comprehensive health care for women,” said Sen. Shannon O’Brien, D-Missoula. “This bill, as mentioned before, is blatantly unconstitutional and will be litigated, and thus becomes a waste of taxpayer time and dollars.”

Democrats unanimously opposed SB 154 and were joined by Republican Sens. McKamey, Bruce Gillespie, R-Ethridge; Dan Salomon, R-Ronan; Russ Tempel, R-Chester; Terry Vermeire, R-Anaconda; and Jeff Welborn, R-Dillon.

Abortion rights advocates spoke about the final vote tally Wednesday afternoon.

“It’s heartbreaking to watch SB 154 pass at second reading. Montanans value our fundamental right to privacy and these continued efforts to undermine our Constitution are harmful,” said Aileen Gleizer, a representative of Missoula’s Blue Mountain Clinic and the Susan Wicklund Fund, an abortion access group.

Speaking to Montana Free Press after the vote, Welborn said he “voted my conscience” on a proposal he said dealt squarely with the right to privacy as opposed to a specific abortion regulation.

“The irony mystifies me that we’re supposed to be the party of less government until it’s our own brand of governing people’s lives. In this case, the most personal space in people’s lives,” Welborn said. “And to me, I feel like we can spend time moving toward — doing the stuff that we’re constitutionally charged to do rather than talking about what divides us.” 

Because the bill was “damn sure not right along a party-line vote,” Welborn said he’s uncertain how to interpret the interest among Senate Republicans for considering other abortion-related bills. 

“Even as our majority grows, maybe there are more and more people that are just willing to say enough is enough,” Welborn said, referring to controversial social-issue bills. “I honestly don’t know what to expect.”

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.