Anti-abortion bills sail through the Legislature; Consequences vs. discrimination

Abortion in Montana could be severely limited if a slew of bills headed to the governor's desk become law. Montana's attorney general intervenes in a lawsuit to ban an abortion pill. Another bill seeks to answer the question of whether religious freedom protects bigoted speech. And lawmakers hope more money will help fix problems at the Warm Springs state hospital.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Sitting in this week for Rob Saldin is Montana State University and Carroll College Political Science Professor Dr. Jessi Bennion.

Sally Mauk: Holly, several anti-abortion bills are on the way to the governor's desk, passed generally along party lines, including a bill similar to a referendum that Montana voters already rejected. And these are bills the governor is expected to sign into law.

Holly Michels: Yeah, I think that's fair to say, Sally. You know, it's not like last legislative session where he specifically called for pieces of legislation, but when he's been asked about the bills making their way through and some of them on the way to him, like you said, he has reiterated that he does oppose access to abortion and these bills would limit that. I think of the batch we are seeing going to him now, one of the most major ones of those is House Bill 721. That's from Speaker Matt Regier of Kalispell. That would ban the most commonly used abortion procedure in the second trimester. That's called dilation and evacuation. And it's the most commonly used because major medical groups say it poses the fewest complications for people compared to alternatives. Regier, in advocating for his bill, has frequently pointed out the alternatives saying that his bill is just about banning this one specific procedure, which he's describing as barbaric, saying his bill does leave those other options on the table. I think it's important to note, too, and we've heard this from many opponents of the bill, that very few abortions happen in the second trimester, and those are mostly in cases of wanted pregnancies with pretty tragic outcomes. Like you said before, Sally, this bill passed on mostly party lines. So all of its support come from Republicans. We did see opposition from three Republicans in the Senate, along with all the Democrats. But that bill is now headed to Gianforte.

Another that's on the way to him, would require reporting for any adverse outcomes from people harmed by medication abortions. And those adverse outcomes are very rare.

Another major one that's on its way to the governor soon, Senate Bill 154 from Senator Keith Regier, Kalispell, Republican who's the father of Matt Regier. That bill would define in state law that the individual right to privacy in the state Constitution doesn't include the right to access an abortion. And that bill wouldn't directly change abortion access in Montana, but aims at getting a state Supreme Court decision that found our Constitution's right to privacy ensures access to pre-viability abortions. You know, both of those bills from the Regiers have legal notes attached to them, thus flagging potential constitutional issues, and we've heard litigation promised against them. We actually saw that already. There's an attempt at a legal challenge against the procedure ban filed by Planned Parenthood of Montana. In Helena, a judge said the request for a preliminary injunction, though, is premature since there's not actually a law that's been signed by Gianforte. But Planned Parenthood has said once the bill is signed, they'll refresh that lawsuit.

And then there's a slew of other bills that have either cleared one chamber, look really likely to soon pass the other and go to Gianforte or just need amendments approved from the chamber that originated from and will be on the way to him. That includes a so-called Born-Alive Act, which is similar to one voters defeated last year at the ballot box. There's also a ban on any abortions after 24 weeks. That 24-week ban is from Representative Lola Sheldon-Galloway, Great Falls Republican, who last session had a 21-week ban that's now temporarily blocked by courts. Then there's also bills to require pre-authorization for abortions for people who are covered by Medicaid. There's also an outright ban on any state money covering abortions except in some cases. There's also a bill to add licensing requirements for clinics that provide abortions. And fair to say, those all look like they're on the way to the governor.

Sally Mauk: The abortion debate, Holly, is as heated as it's ever been. And here's what Dr. Caitlin Blau of Missoula's Blue Mountain Clinic recently told a crowd of supporters of legal abortion.

Caitlin Blau: I've heard a lot of misinformation in the last two weeks, so I want us all to be very clear on this point. Abortions are good. They are moral. They're safe, liberating and empowering.

Sally Mauk: But here's what abortion opponent Republican Senator Steve Hinebauch had to say.

Steve Hinebauch: I will never yield in my belief that life begins at conception and deserves to be protected.

Sally Mauk: And there is a middle ground for many people, Holly, but the Montana Legislature, led by the Republican majority, isn't seeking that.

Holly Michels: Yeah, I think those two soundbites really sum up the arguments we've heard in these debates this session. There's a lot of people giving public testimony, and legislators like Senator Hinebauch who don't condone abortion no matter what. And then there are people like Blau who say abortions are necessary medical care and that allow people to make their own medical decisions. We actually, early on in the session, asked Speaker Regier — there was a proposed constitutional amendment that didn't actually come forward to ban abortion in Montana — say, you know, that might be a tough one on the floor, we're not sure if it will advance, because even in the supermajority Republican, there's a spectrum. Some people, like we hear Hinebauch say, don't want abortion access in any circumstances. Some look to allowing access in the case of rape or incest or if the life of the mother is at risk. So even within the GOP there is some spectrum, but we're hearing a lot of just kind of the extremes. You know, there are pretty obvious partisan divides that follow along, you know, that as well as religious division. Though this session we've heard, I think, more than last, legislators also making the point that not all religions condemn abortion, is something that interests me. And what you said, Sally, that's missing from a lot of this debate is that middle ground.

Sally Mauk: Meanwhile, Jessi, there is a legal fight brewing over the abortion pill, Mifepristone, with two federal judges, one in Texas and one in Washington, issuing conflicting rulings over whether that pill should be legal. And Montana's Attorney General Austin Knudsen has entered the fray, joining other Republican AGs to try to stop the pill from being legally available. I think Mr. Knudsen enjoys joining other lawsuits.

Jessi Bennion: Yeah, I think what a lot of people don't realize about the attorney general is that he is a separately elected official that gets to represent the interests of the state of Montana without many checks and balances. You know, the Legislature does not direct him, the governor does not make decisions for him in legal battles. That gives him a lot of discretion to determine what is in the state's legal interests. So, the AG has this broad authority to represent the state as a legal entity. But what we're seeing more and more is that he's representing kind of his personal viewpoint. Montana doesn't ban abortion pills, so he's really just asking a federal judge to deliver an outcome that stems from his personal viewpoint. And what we have seen with these interventions and letters on this issue, it's a movement for AGs around the country to weigh in on national issues. And I think that that's because many of these attorneys general have ambitions for higher office. And just this week I saw that there was a 'draft Austin Knudsen' website started for a possible U.S. Senate run. So, something like this really helps him gain exposure with his base that he could possibly be trying to signal to.

Sally Mauk: Holly, House Bill 443 is another bill headed to the governor's desk, and this bill would bar discrimination based on religion or freedom of speech, and license professions. And this bill is a reaction to a pastor and real estate agent being disciplined for violating a realtors ethics code after he made some homophobic remarks.

Holly Michels: Yeah. So, this is being carried by Representative Kerri Seekins-Crowe, who's a Billings Republican. And like you said, it would say that speech is protected as religious expression, even if the licensing board or association for a person's profession deems it to be discriminatory hate speech. This does again, you know, come out of a situation. Last year, the Missoulian reported about a Clinton pastor and realtors found by the Missoula Organization of Realtors to have violated their national code of ethics for homophobic hate speech. What happened is the realtor named Brandon Huber pulled out of this lunch program with the local food bank there because he said their actions in regards to LGBTQ communities was contrary to his church's teachings. Through the process, the realtor, who's since left his job, and his attorney, Matthew Monforton, have fought against that decision but didn't gain any traction. They ended up filing a lawsuit that was dismissed by a judge in that community. So, this whole situation is what's prompted this legislation to come forward, and it has advanced through the Legislature with support from Republicans and opposition from Democrats.

In debate on the Senate floor, we heard Senator Mark Noland, Bigfork Republican who said he's been a real estate agent before, say he was alarmed about code of ethics expanding to cover members conduct when they're not on the job working hours. But we heard from Senator Andrea Olsen, Democrat from Missoula, that she felt the right to free speech, that exists, but it doesn't mean that you can expect to say whatever you want without having any consequences for that. The bill has cleared the Senate. Just needs to be voted on in the House again now. It's already passed that chamber, but they just would need to sign off on Senate amendments and then it'll be headed to the governor for consideration. We haven't heard from him, he doesn't really say if he's going to sign legislation or not. So we haven't heard specifically, but I think fair to say that it'll clear the House, since it's already passed that chamber and then be headed to Gianforte.

Sally Mauk: Jessi, there have been more and more claims in recent years that someone's religious freedom is being violated if they are held to account for a bigoted view. And in this case it's an anti-gay pastor.

Jessi Bennion: Yeah. Whether or not if one agrees that this issue is a big workplace problem, it can become the basis of a bill. And most importantly, it can become a way to have a draw of a dividing line. And so we are seeing more and more examples where people cite religious freedom as the basis for how they do their professional jobs. So, for example, cake bakers or flower arrangers for gay weddings. To me, this is a reaction that those people of faith have in the face of societal change. We can think back to when prayer in school, when that Supreme Court decision came down. They can somehow think that they are the victims of persecution or discrimination based on faith. So bills like this can make sense to that kind of religious person. And it's probably why we are going to see more of them.

Sally Mauk: Well lastly, Holly, the Legislature appears ready to pour more money into the state hospital in Warm Springs, to try to shore up an institution that lost a ton of federal money and federal certification last year because of how poorly it was run. And the state Legislature wants to try to fix that, apparently.

Holly Michels: Yeah, there's a fair amount of efforts aimed at Warm Springs and what the situation you described there has been in recent years. You know, we saw House Bill 2, which is the state budget, get an addition of about $56 million to the state Health Department's budget recently. The department's budget is huge. It's the biggest sector of state government, it's $14 billion. This $56 million would be directed at Warm Springs. What it would go toward is helping pay for the cost of traveling staff at the hospital. That's something they relied on, you know, both before COVID, but then exacerbated by the pandemic, they've struggled to get full time employees there. Those traveling staff cost a lot more than a regular employee would. That's about $50 million. The other $6 million is actually specifically targeted at regaining the certification that the hospital lost because of patient deaths and mistreatment there. So that's now in House Bill 2. That's going to be headed to the Senate floor soon for debate, and then it'll kick back to the House to reconsider amendments made in the Senate, probably for a conference committee. And then when that passes, that's the last thing the Legislature will do. So that's a major piece of it. There's also a lot of efforts through bills that would put tens of millions of dollars toward the facility itself, making improvements there. And then there's a separate $300 million piece of legislation that's looking more holistically at the mental health and services for people with developmental disabilities in the state. And that's meant to build up community services to prevent people from needing to go to Warm Springs in the first place.

Sally Mauk: Well, Jessi, Montana's hardly alone in its failure to adequately address caring for people with serious mental health issues. And the consequences, not just for those in crisis but for society as a whole, are enormous.

Jessi Bennion: Yeah, mental health is such an important issue that is going to require many different people at the table. And right now we're seeing major cultural-wide discussions, especially around the gun debate and mental health and trying to find policy solutions for this complex issue. Policy solutions like red flag laws. Suicide is a public health concern as well. So, these issues are what I would call a wicked policy problem. It's going to require federal and state coordination. It's an interconnected issue. It's going to require problem solving. Many people, nonprofits, health care and government working together. And it will take political will and compromises. So, it's a multifaceted issue that sometimes hurts your brain even to think about it. It's a wicked policy problem, but something that absolutely needs to be addressed.

Sally Mauk: Holly and Jessi, we're out of time. Thank you.

Holly Michels: Thanks, Sally.

Jessi Bennion: Thanks, Sally.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Sitting in this week for Rob Saldin is Montana State University and Carroll College Political Science Professor Dr. Jessi Bennion.