Play Live Radio
Next Up:
0:00
0:00
0:00 0:00
Available On Air Stations
Answers to your questions — big or small — about anything under the Big Sky.

What would a federal abortion ban mean for Montana's new constitutional protections?

A picture with the U.S. Capitol on the left and the Montana Capitol on the right. Below, it says "What would a federal abortion ban mean for Montana's recent constitutional amendment?" and has the Big Why logo.
What would a federal abortion ban mean for Montana's recent constitutional amendment?

Montana voters approved a constitutional amendment in November to protect access to abortion. What would federal anti-abortion laws mean for Montana's new amendment?

Austin Amestoy: Welcome to The Big Why, a series from Montana Public Radio where we find out what we can discover together. I'm your host, Austin Amestoy. This is a show about listener-powered reporting. We'll answer questions, big or small, about anything under the Big Sky. By Montanans, for Montana, this is The Big Why.

Austin: Today, we’re going to dig into Montana’s newest constitutional amendment voters approved in November. It enshrines abortion access in the state’s bill of rights. MTPR’s statehouse reporter Shaylee Ragar has more.

Shaylee Ragar: Hey Austin, yes, that amendment passed handily with 58% of the vote in November..

Listener Steve Glow wants to know ...

Steve Glow: My question is – would a federal anti-abortion law overrule the recent constitutional amendment?

Austin: Ah yes, a tale as old as the United States of America itself, and the source of many disputes. States rights versus federal oversight.

Shaylee: Yes. Let's take a brief detour through that history. The first 13 colonies adopted the Articles of Confederation back in 1777, which came before the U.S. Constitution. It set up a system that essentially allowed each colony to govern itself. Montana State University Professor Emerita Susan Dana, who taught law and business courses, says that system caused rifts.

Susan Dana: They didn’t work together very well, so the Constitution was created to create a more cohesive federal system to allow us to work as a country rather than 13 loosely affiliated states.

Shaylee: A few years later, after the American Revolution, the U.S. Constitution was born, and it included the "supremacy clause."

Austin: Supremacy clause — sounds very big and important.

Shaylee: It carries some serious weight.

Dana: The supremacy clause of the U.S. The Constitution states that federal law preempts state law, including state constitutions.

Austin: Ok, but I know people might be thinking —  there are plenty of state laws are unique to each state Montana state legislators just convened for a legislative session where they’ll spend 90 days tinkering with state law.

Shaylee: Right, that’s true. State constitutions are allowed to give their constituents more rights than the federal constitution, but not less. Election law is an example. Montana is one of 19 states that offer same-day voter registration. States create their own laws, but must adhere to the baseline set by Congress. Sometimes those laws fit together like a puzzle, and sometimes they don’t, Dana says.

Dana: The question of preemption of state law depends on whether the federal law is clearly in conflict with the state law.

Shaylee: There’s another legal precedent that relates to our listener’s question that we should do a short refresher on, and that’s the Dobbs decision.

Austin: Right, the U.S. Supreme Court ruling that overturned Roe v. Wade, and ended federal protections for abortion access.

Shaylee: Yes. So anti-abortion activists and many GOP lawmakers celebrated the Dobbs decision. And there was a narrative that this decision turned abortion regulations over to the state, let each state decide what they want to do. The U.S. Constitution doesn’t apply. And that’s what’s happened over the last two years.

According to KFF, there are 18 states that have passed some kind of abortion ban. 17 states and the District of Columbia have passed laws explicitly protecting abortion access.

But Professor Dana says the Dobbs decision does not seem to require that abortion policy be left to individual states.

Dana: And in fact, Justice [Brett] Kavanaugh in his concurrence twice says it could be the states or Congress. So although I think the intent of Dobbs was that it would be the states, there’s nothing there that I think would prevent Congress from regulating abortion.

Austin: That seems to answer our question pretty clearly, Shaylee.

Shaylee: Yes. Federal abortion restriction would win out when they conflict with Montana's new constitutional amendment. But that's only if that actually happens.

Austin: Looking beyond our listener's question, Shaylee, do federal restrictions seem likely? Republicans have control of both chambers of Congress, and the presidency.

Shaylee: It’s hard to say definitely. But there are certainly Republican members of Congress who are pushing for at least some kind of abortion ban. And there are anti-abortion activists who want President-elect Donald Trump to take action on his own, without Congress — which is possible. Trump did say before the election that he would veto a national abortion ban if Congress passed one. But advocates for abortion access say that may have been for political expediency. So, we'll have to wait and see what happens.

Austin: In the mean time, how are those advocates getting ready for that change in administration?

Shaylee: Advocates in Montana and nationwide are preparing for Congress or Trump to act.

Nicole Smith is executive director of Montanans for Choice. She says advocates will be watching both Congress and the state Legislature for attempts to restrict abortion.

Nicole Smith: We’re expecting both direct and indirect attacks on abortion access. We know there are those who will disregard the will of the people and who will continue their attempts to restrict access to abortion in Montana.

Austin: So the state Legislature comes back into play now, Shaylee. How could lawmakers regulate abortion in light of the constitutional amendment?

Shaylee: Restricting abortion has been a top priority for Montana Republicans in the past few legislative sessions. Gov. Greg Gianforte has asked for and signed more than a dozen anti-abortion bills into law since he took office in 2021. All have been blocked in court, but are still waiting for final rulings.

The new constitutional amendment will certainly have an impact on that pending litigation. But that hasn’t totally stifled the anti-abortion movement in the state Legislature.

Austin: What’s their plan?

Shaylee: There are several bill drafts that would restrict abortion to varying degrees. They haven’t been introduced yet, so we might not see all of them advance. But, here's what we know now.

Senate President Matt Regier has long voiced opposition to abortion. He said he knows Montana voters approved the amendment, but he says the language approved in the ballot initiative needs work. He says the Legislature should work on it.

Matt Regier: CI-128 was horribly written. It was unclear what is a health care professional? Do you know what a health care- how would you define that? We've got to clarify something that was very poorly put together.

Austin: Is there a general consensus on that approach?

Shaylee: No, definitely not. Democratic legislators will likely oppose any Republican abortion bill. House Minority Leader Katie Sullivan says she wouldn’t be surprised if legislation related to the amendment would go beyond clarification or definition.

Katie Sullivan: We’re going to try and block anything that we can that tries to restrict those freedoms. We respect what the voters said and we acknowledge the right in the Constitution.

Shaylee: Again, any restrictive abortion measure would be immediately challenged by reproductive rights organizations in court. And the courts would have to decide if such a measure was compatible with the new constitutional amendment.

Austin: Got it. So we’ll just keep an eye on the state Legislature, Congress and the incoming president for any developments. And if the federal government acts, it will likely supersede Montana's new constitutional amendment. Thanks for your reporting, Shaylee.

Shaylee: No problem.

Austin: Now we want to know what makes you curious about Montana. Submit your questions below, or leave a message at 406-640-8933. Let's see what we can discover together!

Find us wherever you listen to podcasts and help others find the show by sharing it and leaving a review.

Austin graduated from the University of Montana’s journalism program in May 2022. He came to MTPR as an evening newscast intern that summer, and jumped at the chance to join full-time as the station’s morning voice in Fall 2022.

He is best reached by emailing austin.amestoy@umt.edu.
Shaylee covers state government and politics for Montana Public Radio. Please share tips, questions and concerns at 406-539-1677 or shaylee.ragar@mso.umt.edu.  
Become a sustaining member for as low as $5/month
Make an annual or one-time donation to support MTPR
Pay an existing pledge or update your payment information