After nearly two decades of a Democratic governor vetoing anti-abortion legislation, Montana is poised for a major change — and possible legal battles — over laws that allow for broad access to abortion.
Gov. Greg Gianforte has been outspoken against abortion access since starting down the campaign trail last year.
“I will be very clear: I am pro-life," he said. "I think life is precious and it needs to be protected.”
Gianforte doubled down on that message in his first State of the State address last month in Helena.
“We must protect the lives of the most vulnerable: unborn children."
During his address, Gianforte implored lawmakers to send him two bills to sign -- one that would ban most abortions at 20 weeks and another to require doctors to care for infants born alive after an attempted abortion. The latter scenario is one experts say is extremely rare, and it has been noted that infanticide is already illegal.
But Republican lawmakers have already passed these policies through the House and given them initial approval in the Senate. As the 2021 session continues, legislators may sees as many as a dozen other bills aiming to limit abortion.
The Democrats in Montana’s statehouse have vowed to push back. Rep. Laurie Bishop gave her party’s rebuttal to Gianforte’s State of the State.
“After a long campaign season talking about jobs, Montana Republicans have let our economic recovery fall by the wayside. Instead they have focused their energies on attacking the freedoms of Montana’s women...”
But Democrats are outnumbered: Conservatives hold iron-clad majorities in both chambers of the Legislature.
“We are so excited, as the Republican Party to have a governor that stands with us, and stands for life,” Lola Sheldon-Galloway said.
Rep. Sheldon-Galloway is vice chair of the Montana GOP, as well as the legislator who introduced the 20-week-abortion-ban bill. She is one of a dozen lawmakers carrying anti-abortion legislation this session:
“House Bill 140 will require an abortion provider to offer the patient the opportunity to view an active ultrasound.”
House Bill 136, entitled "An Act Adopting The Montana Pain-Capable Unborn Child Protection Act," and House Bill 167 are two other examples.
One bill in particular would have a unique impact in Montana, the nation's fourth-largest state in land size. This bill would ban medication abortions via telehealth and would also require a mandatory 24-hour waiting period.
Groups like the American College of Obstetricians and Gynecologists say the safety of a medical abortion is well established, but House Bill 171 would also require providers to overstate the dangers for women getting a medication abortion.
Republican Rep. Sharon Greef of Florence is the bill’s sponsor.
“I am here today to try to put some safeguards in place."
Opponents of the bill say it would add undue burden for those seeking abortions, particularly for rural, Native American and low-income Montanans.
Joey Banks is the chief medical officer for Planned Parenthood of Montana and a primary care physician. She described a typical scenario of a patient seeking a medication abortion.
“She’s a mother that’s five hours away and has four kids," she said. "I’m able to mail her the meds. She doesn’t have to take off work, she doesn’t have to load her smallest kids in a car and drive five hours through a pandemic."
Banks said some of her patients are leaving an abusive partner while others are juggling work with homeschooling their kids.
“If bills like this pass in Montana, women will not be as safe, and we know that the complication rate from non-safe abortions or self-induced abortions sometimes can be higher."
While Republicans have a partner in the governor’s office, abortion rights advocates will likely challenge any bills that become law in court.
Anthony Johnstone is a constitutional law professor at the University of Montana. He said Montana is one of only about 10 states that has an added layer of protection for a person’s right to privacy. That right could aid legal challenges.
Johnstone explained that a '90s case challenging a law mandating that only physicians could perform abortions in Montana set a legal precedent. The final ruling affirmed the state’s right to privacy protects access to abortion.
“The Montana Supreme Court — all seven justices — unanimously concluded that that law was unconstitutional and it violated Montana’s right of privacy," Johnstone said.
"And that, in general, the Montana Constitution protected the right to an abortion, and more generally, the right to make medical judgements affecting her/his bodily integrity and health in partnership with a chosen health care provider free from the interference of the government."
This is the court case anti-abortion opponents hang their hat on when arguing against bills moving through Montana’s Legislature. So far, it hasn't slowed any bills moving through the houses.
That means the fate of access to abortion in Montana will hang in the balance until both lawmakers and the courts have their final say.