HELENA — Three new Montana laws meant to restrict abortion will remain on pause until after a trial to decide whether they are constitutional, according to a Tuesday ruling from the Montana Supreme Court.
In 2021, the Montana State Legislature's Republican majority passed three bills, which together would have banned abortions at 20 weeks, eliminated tele-health services for medication abortions and required that abortion providers offer patients an opportunity to hear a fetal heart tone or see an image of the fetus prior to an abortion.
A five justice panel reviewed the court's decision to temporarily stop the laws from taking effect. Montana Supreme Court Justice Beth Baker wrote the opinion and said Yellowstone County District Court Judge Michael Moses was correct to block implementation of the laws because all three appeared to violate the Montana State Constitution. The Montana Supreme Court's 1999 Armstrong decision set the precedent that the right to privacy in Montana's Constitution protected a person's bodily autonomy, including a person's right to a pre-viability abortion.
"The District Court found that the challenged laws restrict abortion," Baker wrote in the majority opinion. "Because they ban certain pre-viability abortions, they restrict access to medication abortions, and they stigmatize and deter patients from seeking out abortion services."
Planned Parenthood of Montana filed a lawsuit challenging the constitutionality of the laws in August 2021. The case will return the Yellowstone County District Court for trial, Baker wrote.
Justices Jim Shea, Laurie McKinnon, Dirk Sandefur and Jim Rice concurred with Baker's opinion.
The state supreme court did not address Montana Attorney General Austin Knudsen's request for the court to overturn Armstrong, calling it premature. Earlier this month, Gov. Greg Gianforte made a similar request for the court to overturn Armstrong given the U.S. Supreme Court overturning of Roe v. Wade through the Dobbs v. Jackson decision.
In September 2021, Planned Parenthood asked the Montana Supreme Court to an emergency order to block the three laws, and then either rule on a lengthier injunction or send that issue back to state court in Billings to be resolved. The high court declined, sending the case back to Moses, who ordered a preliminary injunction.
Planned Parenthood's request for an emergency order came the day after Knudsen's office sought to disqualify the former presiding judge, now-retired District Judge Gregory Todd. Knudsen's office said Todd had shown bias against the state's position. Todd stepped down from the case and Moses took his place. The shake up of judges came about 36 hours before the laws were set to take effect.
Knudsen's office criticized the Supreme Court's decision Tuesday.
“The current standard for preliminary injunctions is so low that it’s not really a standard at all,” said press secretary Emilee Cantrell in a statement. “As a result, constitutional laws like these may be blocked for months – or even years – before courts ever decide cases on the merits. Armstrong was wrong the day it was decided and its use in delaying these commonsense laws that protect the health and safety of Montana women makes that even more clear. It’s unfortunate that the state Supreme Court dodged that question and reaffirmed one of the most radical abortion regimes in the nation based on their made-up Armstrong decision.”
Gov. Greg Gianforte also released a statement, again calling on the court to reconsider the Armstrong decision.
“The Montana Supreme Court kicked the can down the road today on Armstrong, the 1999 decision which used Roe v. Wade to recognize abortion rights in Montana,” he said. “With Roe overturned, the Montana Supreme Court must revisit its decision in Armstrong, and I look forward to it doing so promptly.”
