HELENA — If the U.S. Supreme Court removes federal protections for abortion it would remain legal in Montana under the state constitution.
A leaked U.S. Supreme Court draft opinion showed the court’s intention to overturn Roe v. Wade, which legalized abortion nationwide in 1973. The draft, leaked to Politico, “does not represent a decision by the court or the final position of any member on the issue in the case,” said John Roberts, chief justice of the U.S. Supreme Court.
The draft opinion’s release came while multiple abortion laws wind through Montana’s judicial system. Some of the laws in question outlaw abortion after 20 weeks of pregnancy, severely restrict access to abortion pills, require doctors to ask abortion patients if they want to see an ultrasound of the fetus. All of those laws are on hold while the constitutionality is weighed by Montana courts. Additional laws are also under litigation regarding parental consent and notification for minors seeking abortions as well as a ban on abortion insurance coverage in publicly subsidized health plans.
After the draft opinion leaked, anti-abortion advocates in Montana became “cautiously optimistic” said Jeff Lazsloffy, president and CEO of the Montana Family Foundation. If the draft becomes the final court opinion the fight for illegal abortion would pivot back to the state level, Lazsloffy said.
This is due to the 1999 Montana Supreme Court decision in Armstrong v. State, which said the right to privacy in the Montana Constitution gave women the right to decide whether to have an abortion without excessive interference by the government. This allowed women to have an abortion prior to fetal viability.
Since the decision was handed down, any new restrictions on abortion passed by the Montana State Legislature are tested against the Armstrong ruling. Earlier this year, Montana Attorney General Austin Knudsen asked the Montana Supreme Court to overturn the Armstrong decision.
“Armstrong,” Lazsloffy said. “Put us in a box.”
For Lazsloffy, the two paths to make abortion illegal in Montana are either to amend the state constitution to no longer protect abortion or replace the entire Montana Supreme Court and get it to nullify Armstrong.
Planned Parenthood of Montana CEO Martha Fuller said she appreciated Lazsloffy’s forthrightness about his want to ban abortion in Montana. She stressed how his statements are an example of how important local elections are when it comes to issues such as abortion in Montana. She also pointed to how anti-abortion and pro-abortion rights advocates are still pushing for a federal law either protecting or banning abortion.
“Some things could happen on the national landscape as well,” Fuller said.
Activists from both sides came out across Montana to demonstrate after the release of the leaked opinion.
Currently at the Capitol… #mtpol pic.twitter.com/RKJ5SPoQ4k— Kennedy (@BroadwellK) May 3, 2022