The Session:  Deadline rush includes abortion access debate


Reporters Mara Silvers and Shaylee Ragar discuss this week’s deadline for lawmakers to pass general bills out of their original chamber. There’s a lot of policy to consider, including rules about access to abortion.

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Mara Silvers: It’s day 41 of the 90 day session. Lawmakers are sprinting towards a Friday deadline to move bills between chambers and considering a stack of abortion proposals to restrict and protect reproductive rights. This is The Session, a look at the policy and politics inside the Montana State House. I’m Mara Silvers. I cover the state House for Montana Free Press. 

Shaylee Ragar: I’m Shaylee Ragar. I cover the state House for Montana Public Radio. 

Mara Silvers: I wanted to start with a little bit of a vocabulary lesson, because the most popular word in the halls right now is transmittal. What is the transmittal deadline and why does it have lawmakers sprinting around the halls this week? 

Shaylee Ragar: Yeah, Mara it’s super chaotic at the Capitol right now, and that’s why listeners are only hearing two reporters on The Session this week. It’s a pretty busy time for reporters, too. We know this deadline is coming every session, and yet lawmakers are still scrambling. So general policy bills must advance from one chamber to the other, either the House to the Senate or vice versa, depending on where the bill was introduced to survive the transmittal deadline. And there will be bills that die by transmittal deadline. And sometimes that’s strategic on the part of lawmakers. But in any case, there are a ton of bills getting smushed into long committee hearings in advance of that deadline. And I should note that bills that include spending or taxes or a referendum for voters like an amendment to the state’s constitution, have a later deadline. That’s April 3rd. So they’re being put on hold right now until we get through this transmittal crush. 

Mara Silvers: So you mentioned long committee hearings and lawmakers trying to work through this backlog of bills. One example of that is the House Judiciary Committee, which has basically been having two a days. And that means like starting their hearings at 7 a.m., hearing close to a dozen bills sometimes and then meeting again in the afternoon. So how are lawmakers feeling about that schedule or something like that schedule? 

Shaylee Ragar: I’d say they’re pretty visibly worn down. Mara. I caught up with Representative Laurie Bishop on Friday. She’s vice chair of the House Judiciary Committee just after that committee adjourned just before 1 p.m. on Friday. They had started their day at 7 a.m. and she had 5 minutes to get to the House chamber for the daily floor session where lawmakers vote to advance legislation. And we were both a little out of breath as we hightailed it up to the third floor of the Capitol. 

Rep. Laurie Bishop: It’s a big load when you’re under that crunch, trying to make sure that you both give fair hearings to bills and give fair consideration to them. So I think everyone’s feeling the long hours. But it feels manageable so far. 

Shaylee Ragar: And this is an important point she’s making when lawmakers aren’t feeling the crunch, when they aren’t on deadline and they have more time between each bill hearing and more time between a bills hearing and the vote on that bill they dig in, they research, they talk to experts about that proposal. And there’s just not much time for that to happen in the two weeks before transmittal. 

Rep. Laurie Bishop: We’ve got advocates that are running back and forth between committees, but we also are just finding that the public just doesn’t have enough time to be able to digest and get in before things need to be both heard as well as take executive action. 

Shaylee Ragar: And in some cases, lawmakers vote on a bill the same day it’s heard. 

Mara Silvers: Like Representative Bishop is saying there, there’s a lot of policy to consider even within a compressed time frame. And sometimes that policy is very high profile, very important to voters. One of the issues that definitely falls into that category is abortion and reproductive rights. And to set the scene a little bit, as some listeners might know, abortion remains legal in Montana because of a 1999 Montana Supreme Court ruling in a case called Armstrong v. State. It basically said that access to abortion is protected under the state’s right to privacy. It’s an exercise of medical autonomy, procreative autonomy. So that’s the legal landscape in Montana. But it definitely doesn’t mean that the issue is any less contentious or hotly debated in the Capitol. 

Shaylee Ragar: Totally, Mara. But even though the framework of the case is still in place and beliefs on this topic aren’t changing, they’re pretty set in stone. The political strategy seems to be shaking out very differently this session as compared to last session. You’ve done a ton of reporting on this, Mara. Is that what you’re seeing? 

Mara Silvers: Yeah, I think that that’s fair. And maybe just to set the contrast a little bit. Republicans came in to the legislature two years ago with a strong majority and a Republican in the governor’s office for the first time in more than a decade. And they considered and passed a long list of abortion restrictions, in part because Governor Gianforte encouraged them to do that. He gave them the directive that he wanted to see those bills on his desk, but then those restrictions, which included a ban on abortions after 20 weeks in pregnancy, and another one that adds red tape for medication abortions early in pregnancy. Those laws were challenged in court by Planned Parenthood of Montana and blocked from going into effect by a district court judge while the litigation continues. And then on top of that, the U.S. Supreme Court decided last June to eliminate federal protections for abortion access and kick that debate to the states in the Dobbs decision. And as we’ve both reported, Montana became the only state out of our bordering states to maintain unencumbered legal access to abortion over the last eight months. So what we’re seeing this session is Republicans trying to introduce policy that works around both the Armstrong decision and the abortion bills that are currently tied up in court and might be ruled unconstitutional. And I think that that situation has kind of muddied the trajectory for the conservative anti-abortion movement. 

Shaylee Ragar: Yeah, and I think we can also look to one of the most consistent proponents for abortion restrictions, which has been the Montana Family Foundation. And the president of that group, Jeff Laszloffy nodded toward the bind that antiabortion advocates are in during a hearing last week. He was speaking about House Bill 575, which is a bill to prohibit abortions after viability, which the bill indicates is 24 weeks. 

Jeff Laszloffy: Well, we’re hopeful that one day the Montana Supreme Court will correct the mistake that is the Armstrong decision. Until that day, this bill will ensure that a determination of viability is made before any abortion is conducted. And that’s the best that we can do for now. 

Mara Silvers: Yeah. Tell me more about that Bill and some of the other proposals that we’re seeing from Republicans. 

Shaylee Ragar: We’re seeing proposals this legislative session from Republicans that are a bit more narrowly tailored when it comes to anti-abortion policy. So just last week, we saw bills to restrict Medicaid coverage of abortion procedures, which actually mirrors language in an administrative role that the state health department has proposed. That rule has not been officially adopted yet. So we’re still waiting to see how that plays out. The other bill that I talked about that would ban abortions at 24 weeks is being carried by Republican Representative Lola Sheldon-Galloway from Great Falls, and she was also the sponsor of a 20 week abortion ban last session, which passed into law but is one of the bills tied up in court. 

Rep. Lola Sheldon-Galloway: I just want it to go on record that I hope on my tombstone it says “I fought for the unborn.” 

Shaylee Ragar: This session, we’re also seeing proposals from Democrats to protect abortion rights. And they have that Montana Supreme Court precedent, the Armstrong decision on their side, saying that the state constitution protects access to abortion. 

Mara Silvers: Right. And I think it’s worth mentioning that the legal landscape and the political landscape have really shifted for Democrats as well. And that’s in part because after the fall of Roe v. Wade, several states around the country moved to legalize abortion and protect abortion access. And I think that the outcome of the midterms last year across the country gave Democrats and abortion rights proponents more of an indication that the public is interested in protecting and expanding reproductive rights. And that interpretation has changed their posture coming into this session. 

Shaylee Ragar: That’s definitely been interesting to watch. We’re seeing these proactive progressive bills from Democrats looking to protect access to abortion here in Montana. Representative Laurie Bishop of Livingston and Senator Jen Gross of Billings both brought bills to essentially codify that Armstrong decision we talked about. Representative Ed Stafman of Bozeman brought a bill to allow religious exceptions to abortion restrictions. And Representative Marilyn Marler of Missoula proposed a civil penalty for someone who interferes with another person’s ability to access reproductive care. Of course, Montana Republicans hold a supermajority in the state legislature here, and Democratic proposals face an uphill battle from the moment they’re introduced. 

Mara Silvers: Yeah, all of those bills that have been voted on so far have failed on party line votes, especially in the House Judiciary Committee. And that breaks down to 13 Republicans voting no and 6 Democrats voting yes. But those same caucus breakdowns have also helped pass Republican proposals out of the same committee. So this past week, the 24 week abortion prohibition and the Medicaid eligible abortion restriction, those both passed out of committee on the same party lines. And next, they’ll have to clear votes on the House floor and be transmitted to the Senate in order to continue this session and overcome that same transmittal deadline we started talking about. Shaylee, I think it’s kind of easy to get hyper focused on the vote count in some of these committees and on the House and Senate floor. We know the partisan breakdown on this issue, but what do we actually know about how Montanans, outside of the state capitol and outside of Helena feel about this issue now? 

Shaylee Ragar: Yeah, I think that’s a question we’ve all been trying to answer for years now in Montana, and there just hasn’t been great data or polling in the state on how Montanans feel about abortion. A lot of abortion rights advocates are now pointing to the ballot initiative LR 131 that would have criminalized physicians who fail to provide care to infants who survive an abortion, which we should say is exceedingly rare. But Montanans voted that ballot initiative down last fall. So abortion rights advocates say that shows Montanans want to protect a woman’s right to choose abortion. Republicans say that we can’t draw any big conclusions on the abortion debate from that as it was a pretty specific issue. But Montana State University political scientist Jessi Bennion has been digging into some recent national polling from the Public Religion Research Institute and says we’re starting to see a clearer picture. 

Jessi Bennion: 64% of Montanans were in favor of some sort of abortion access. But then when you looked at the states surrounding us, it was much different, much redder, maybe much more Republican in typical leaning. 

Shaylee Ragar: Bennion says This may be why we haven’t seen an outright ban on abortion introduced yet this session, although we know lawmakers have requested that staff draft up policy that does just that ban abortion in Montana. So we’ll just have to wait and see if it actually gets introduced before the end of the session. 

Mara Silvers: And of course, it’s always possible that some of these laws end up in the courtroom because of the legal precedent we talked about earlier. And that gets at another throughline that Republicans have been really focused on so far this session and one that we’ve talked about earlier, changes to the judicial branch and how the court system works. So, Shaylee, can you catch us up to speed on some of the bills we’ve already talked about and whether or not lawmakers have approved or rejected those proposals? 

Shaylee Ragar: Definitely, yeah. There have been quite a few bills to change the judiciary, so I’ll just stick to the big ones here. Republican Senator Steve Fitzpatrick from Great Falls is carrying Senate Bill 191 to raise the standard for judges to grant preliminary injunctions or blocks that maintain the status quo during a lawsuit. And that proposal zipped through both the Senate and House and is now on the governor’s desk for either a signature or a veto. I’ve also been keeping my eye on four different bills that would make judicial elections partisan either at the candidates discretion or mandatorily. Two of those bills failed in committee and one of them failed on the House floor. But one of the bills, a bill to require that judicial elections become Partisan, is moving on to the Senate floor for consideration. So I’ll keep track of that. 

Mara Silvers: That’s a lot to digest, but thanks for helping me break it down, Shaylee. 

Shaylee Ragar: Thank you, Mara. 

Mara Silvers: And for listeners who want to spend more time talking about all of the major takeaways from the first half of the session, there is an opportunity to do that. The reporters who you’ve been hearing from on The Session will be hosting a live show at 7 p.m. on Wednesday, March 8th. You can find a link to our online streaming platform for that show on our websites or as a Facebook event. If you search “The Session live the first 45 days” and if you use that link, you can also send us questions that we can answer during the event. This has been The Session, a look at the policy and politics inside the Montana State house. We’re taking next Monday off, but we will be back on the airwaves in mid-March. 

This has been The Session, a preview of the policy and politics inside the Montana statehouse. The Session is produced by Montana Free Press, Montana Public Radio and Yellowstone Public Radio. Join us next week for a new episode or subscribe wherever you get your podcasts.