With some Republican abortion restrictions signed into law, critics blast government overreach into personal health care choices

In the wake of the 2023 Legislature, the Montana Republican Party on Wednesday celebrated a stack of new laws restricting abortion and reproductive health care, setting up a likely clash with the state’s nearly 25-year-old court ruling that broadly permits abortion as a private medical choice.

Though Gov. Greg Gianforte spoke approvingly about a list of 10 bills carried by Republican lawmakers this session, he signed only five into law during a ceremony at the Capitol. Those included a ban on abortions after 24 weeks of pregnancy unless to save the life of the mother and another that interprets Montana’s constitutional right to privacy in state law as not including a right to abortion. He said he looks forward to signing the other bills — including a blanket restriction on the most common type of abortion after the first trimester — after they are finalized by legislative staff and leadership and transmitted to his office.

“Thank you for protecting life, for protecting our children, for promoting stronger families. Thank you for giving a voice to the voiceless. Thank you for uniting in our shared belief that every human life is precious and must be protected,” Gianforte told the crowd filled with lawmakers and anti-abortion advocates.

The advancement of the longstanding conservative agenda comes less than a year after the U.S. Supreme Court eliminated federal protections for abortion. In the months that followed the order in Dobbs v. Jackson Women’s Health Center, voters in many states rejected further regulations on abortion and failed to deliver Republicans a decisive majority in Congress during the 2022 midterm elections — electoral outcomes national analysts have linked to blowback over the fall of Roe v. Wade. 

Abortion in Montana has for decades remained legal under the unanimous 1999 Montana Supreme Court ruling in Armstrong v. State. That precedent helped block Republican-backed legislation passed in 2021 from taking effect while litigation continues. 

Attempting to chip away at the Armstrong ruling and curb abortion in myriad ways has remained a key priority for conservatives this session. Flanked by the governor and Republican legislators, anti-abortion advocate Jeff Laszloffy, president of the Montana Family Foundation, said this session was “the most pro-life legislative session in the history of the state of Montana” and that more work is still in store.

“With regard to the pro-life issue, as this governor is fond of saying, we are now directionally correct. But that’s just a start,” Laszloffy said. “We will not rest until the Armstrong decision is overturned, until every life is protected from the moment of conception. And until the scourge of abortion is lifted forever from the great state of Montana.”

The avalanche of bills, far more than those introduced last session, was met with full-throated opposition from reproductive rights advocates and Democrats. Opponents, including some people who testified publicly about their own abortions, argued the bills are out of step with what most Montanans want — appeals that failed to flip many Republican votes. 

“Montanans take care of one another. We believe that living a life with dignity means that we can make private and personal decisions without government interference,” said Nicole Smith, executive director of Blue Mountain Clinic in Missoula, in a statement after the governor’s bill signing. “The 68th legislative session passed laws that seek to take away our fundamental rights. If implemented, these bills will directly harm our friends, families, and neighbors. We will continue standing up for what we know to be right, good, and moral.” 

A SHIFTING LEGAL LANDSCAPE

Unless blocked by courts, the bills signed by the governor on Wednesday and those still waiting in the wings will add restrictions to abortion providers and curtail procedures at different stages of pregnancy. Together, the full slate of legislation will ban the most common procedure for abortions after 15 weeks of pregnancy; prohibit abortions after 24 weeks of pregnancy; bar any public funds including Medicaid from covering abortions except in rare circumstances; require parental notification for abortions sought by minors; mandate licensing for abortion clinics; adopt a narrowed version of the “born-alive” referendum Montana voters rejected in November; and codify an interpretation that the state’s constitutional right to privacy does not include the right to access an abortion.

Another bill, House Bill 786, adds reporting requirements for the prescription of abortion medication, and has already become law after Gianforte signed it in late April. The law will take effect on Oct. 1 of this year. 

The bills signed on Wednesday include House Bill 303, a medical conscience bill that requires health care providers to opt-in to participating in abortions and allows them to abstain from offering other health care services; Senate Bill 154, the statutory interpretation of the Montana Constitution’s right to privacy; House Bill 575, which presumes viability at 24 weeks and prohibits procedures after that, and House Bill 625, which requires medical providers to offer life-saving care to newborn infants born after an abortion.

Supporters of the last bill say it explicitly allows parents to refuse procedures that are not reasonable, including those that “temporarily prolong the act of dying when death is imminent,” a feature of the debate over LR-131 last fall. Opponents reject that the revised language helps protect the rights of parents who are grieving pregnancy complications.

Several pieces of legislation, including HB 575 and HB 625, are set to take effect upon becoming law. As of Wednesday afternoon, no lawsuits attempting to block the policies had been announced. 

Critics of the bills say many appear patently unconstitutional because of Montana’s legal precedent under the Armstrong decision. The immediate effective dates, they say, will likely jumpstart lawsuits for months to come. 

“We have that procreative right of privacy and we have the right to make those decisions outside the Roe v. Wade decision,” said Robin Turner, a lobbyist who opposed the bills on behalf of the ACLU of Montana and the Montana Coalitions Against Domestic and Sexual Violence. “What this really does is create litigation … By having the bills go into immediate effect, it does call the question much sooner.”

Attorneys representing Planned Parenthood of Montana attempted in mid-April to temporarily block the enforcement of the 15-week restriction. At the time, the bill had passed both chambers of the Legislature but had not yet been passed to the governor’s office for his signature or veto.

Hours after that filing was submitted, Helena District Court Judge Kathy Seely rejected the motion for a temporary restraining order, adding a handwritten note near her signature.

“No bill has been signed. Thus, no ‘law’ to enjoin today,” she wrote. “Denied as premature.”

Plaintiffs have said they are prepared to resubmit their motion to block the law as soon as possible after the governor’s signature. University of Montana law professor Anna Conley said that timeline leaves room for the law to take effect until a court says otherwise.

“The law will be in effect unless it is enjoined by a court, either as a temporary restraining order … or as a preliminary injunction,” Conley said in an April emailed statement. “If a court denies a motion for a temporary restraining order or preliminary injunction, the court’s denial can be appealed to the Montana Supreme Court.”

Ultimately, it is the state’s high court that will have to deliberate on the many legal challenges to the Armstrong ruling. The Montana Supreme Court last year upheld a district court ruling that blocked Republican abortion restrictions from taking effect while litigation continued but has not squarely weighed in on Armstrong in the years since the unanimous opinion was issued.

“It’s going to be very uncertain until courts start ruling,” University of Montana law professor Craig Cowie said in a written response to questions from Montana Free Press. “Courts may stay the laws or allow them to go into effect (depending both on their views of the challenges to the laws about abortion and the changes to the laws about ordering injunctions). The Supreme Court may also rule on the stays, but ultimately we won’t know for sure until the Supreme Court answers the question on Armstrong.”

‘YOU DON’T KNOW MY SITUATION’

Caught within the legal and political uncertainty are patients, families and providers evaluating how the new slate of bills will impact their lives. Montanans with personal stories about abortions have attended committee hearings and shared their experiences publicly, spurred on by restrictions in other states and, for some, the prospect of patients losing access in Montana. 

In November, the same month newly elected lawmakers were imagining their futures in Helena, Bozeman resident Anne Angus and her husband were in mourning. Weeks earlier, Angus, 33, had received a new diagnosis about her pregnancy. Her baby had Eagle-Barrett syndrome, a rare condition affecting the urinary tract, abdomen, kidneys and lungs that can range in severity. Angus said her medical team identified the diagnosis as on the serious side of the spectrum around the 24-week mark of her pregnancy. 

“They gave us the best-case scenario, which was a lifetime of, honestly, what I felt were experimental surgeries, very painful experimental surgeries,” 

Angus, a data scientist who testified about her story at the Legislature this year, said in an April interview with Montana Free Press that her doctors, after more evaluation, suggested the family consider termination. In the middle of what she called a “very wanted” pregnancy, Angus was not prepared to pivot. After further consultations with specialists, she said, the medical reality of what her son was facing began to sink in.

“We made the decision there. Obviously, that night was rough,” Angus said. A week earlier she had bought an infant onesie printed with teddy bears — after leaving the hospital, she said, “I just stayed up all night crying, thinking he’s never going to wear that.”

Angus terminated her pregnancy two weeks later in November at an out-of-state clinic, partly because the procedure was beyond the scope of practice for abortion clinics in Montana. The experience broadened her perspective on reproductive rights, she said, and affirmed her belief that the government shouldn’t create blanket restrictions on highly personal circumstances. 

“Now I understand, oh, pregnancy follows its own timeline. Pregnancy follows its own road,” Angus told MTFP.

To the lawmakers supporting legislation that would override such personal decisions, Angus said she wishes they could understand her perspective. 

“You’re never going to love my kid more than I do,” she said. “… There’s nothing shameful about doing what you think is most loving in a horrible situation,” she said. 

Looking at the bills that have advanced through the session, Angus described being “terrified” about trying to become pregnant again. If she again needs to terminate a pregnancy for medical reasons, she said, she’s afraid of how Montana’s laws would restrict her options, including the bill that prohibits dilation and evacuation procedures.

“I’m looking at drive times to Washington and Colorado because if that passes, if I have an acute medical event, I’m not going to be able to get care here because [dilation and evacuation] is the safest, most effective way to terminate a pregnancy if you need to,” Angus said. “I’m not going to wait until I’m in septic shock to get care. I’m going to drive seven hours to Washington or nine hours to Colorado. It sucks I have to think about that, but I do.”

Two other Montanans who spoke to MTFP about their abortions noted other pieces of legislation that struck them as egregious infringements on reproductive rights, including the prohibitions on Medicaid and other public funding for abortions. One of those bills, House Bill 544, mimics a state health department rule that has been temporarily enjoined by a district court judge. Another, House Bill 862, seeks to implement the federal Hyde Amendment in state law, allowing Montana Medicaid funds to pay for abortion only in the cases of rape, incest or to prevent the pregnant person from dying. 

Ali, another Bozeman resident who asked MTFP to withhold her last name to protect her privacy, said the Medicaid prohibitions would function as a sharp restriction on abortion for low-income patients. Ali said she was able to pay the roughly $800 for her abortion in 2021 out of her own pocket, without private insurance coverage, but that that option is not available to many people.

“I think that that’s one of the most devastating things we’ve done this session,” Ali said. “It’s obviously going to affect low-income people and people of color more than anybody else. And I think that’s a real shame that that has been passed this session. I think it’s going to do some serious harm.”

Above all, Ali said, the restrictions pushed by Republicans seem to conflict with what most Montanans want — a recent poll by the Public Religion Research Institute showed that 64% of state residents say abortion should be legal in all or most cases. The thought of spending years in court fighting restrictions at the state and national level, Ali said, is exhausting.

“There is just sort of like a general level of exhaustion that comes from feeling continually disappointed and nervous about what my options are going to be surrounding reproductive health care,” she said. “Historically, because of our Constitution, this has felt like a safer place to be. And I hope that that doesn’t continue to be sort of eroded and encroached on. It’s more or less a waste of people’s time to push legislation through that isn’t in line with our Constitution.”

‘WE DO FEEL THAT STRONG ABOUT IT’

Despite pushback from voters in other states over the last year indicating popular support for abortion rights, Republicans in Montana’s Legislature rarely voted against restrictions this session. Some of those who did, including Sen. Wendy McKamey, R-Great Falls, and Sen. Jeff Welborn, R-Dillon, indicated they saw privacy as a foundational right and that certain abortion bills risked government overreach. 

Two other lawmakers from the majority party who asked for anonymity to discuss party politics said they didn’t agree with the full slate of abortion bills, attributing the focus on the issue to particularly devout Christian lawmakers who made it a priority. Regardless, both legislators said they couldn’t risk undermining their own bills or relationships with others in their party by voting against abortion restrictions.

Some sponsors of the bills framed their efforts as aligned with the Republican Party platform and fundamental to their personal prerogatives about protecting life before birth.

“I think it’s sad that the message is about the woman’s body and not the little girl whose body is inside that woman’s body,” said Rep. Lola Sheldon-Galloway, R-Great Falls, in an April interview. “… Even if Montana voted [in favor of abortion access] it’ll still be in our platform. And the day it isn’t there’ll be a lot of people that leave the Republican Party and do something else because we do feel that strong about it.”

Sheldon-Galloway, who sponsored HB 575 to limit abortion after 24 weeks and several other proposals, said she understands most Montanans don’t want a total ban on abortion — a reason she pointed to for why Republicans didn’t push a fetal personhood bill this session intended to outlaw abortion entirely. Instead, she said, she attempted to narrowly tailor her legislation while still protecting the unborn. In the case of HB 575, for example, Sheldon-Galloway did not include an exception for rape or incest victims, a personal sticking point she referenced with MTFP.

“People say I’m not being compassionate to people that, you know, got raped,” Sheldon-Galloway said. “To me, killing a child and being raped is two things that you have to live with for the rest of your life. I really believe in the Lord Jesus Christ healing and by giving birth to that child, he’ll heal you from the rape trauma. And through his grace, maybe even erase it from your memory. And I’ve seen that happen, too.”

Speaking at the May bill signing, Republican lawmakers and Gianforte framed the cumulative list of bills as a strong effort to protect life, children and families. The governor elaborated on that vision by referencing his proposed child tax credit, which lawmakers failed to advance, and the successfully passed $5,000 tax credit for adoptive parents. Both policies, he said, would help people who are considering abortions.

“Ultimately, every child deserves a loving home. Too often we lose unborn children because their parents don’t feel ready to welcome their child into the world with the support they need and deserve. Adoption, not abortion, is often the answer,” Gianforte said. “We will always support life because that’s the outcome we all strive for.”

Editor’s note: This article was updated on Wednesday, May 3, to correct bill descriptions of House Bill 303 and House Bill 625.