Surprise! Montana Supreme Court Actually Expanded Abortion Rights

Unanimously, in fact!

Earlier this month, Montana Governor Greg Gianforte signed a whole bunch of terrible terrible laws meant to restrict abortion rights, all of which are deeply stupid and make no sense whatsoever.

One (HB303) allowed health care providers to refuse to perform abortions if doing so violates their“ethical, moral, or religious beliefs or principles” — always a weird one, given that there is really no reason they would be asked to do so in the first place. There are only five places that provide abortion in Montana and they are all abortion clinics. Maybe people who don't want to do abortions should just not work at abortion clinics.

Another, ( HB625 ) requires doctors to provide care to babies "born alive" after an abortion. This is also not necessary, as Montana does not allow for abortions after viability and also murder is already illegal.

Another, (HB786) requires physicians to report instances of women being "harmed" by the abortion pill and will take their license away for up to a year if they refuse to comply.

Still another, (SB154) "clarified" that the right to privacy in the Montana constitution does not apply to abortion. And another, ( HB575 ) requires an ultrasound and a letter attesting to the fetus' nonviability in order to get an abortion — which means that patients won't be able to get abortion medication through telehealth.

But on Friday, the state's supreme court bit back and signalled, pretty strongly, in a unanimous decision, that none of these measures stood a chance if challenged in court by invalidating a 2005 law that barred anyone but a physician, including nurses and clinicians, from performing an abortion.

“[U]nder Montana’s Constitution, the right of individual privacy — that is, the right of personal autonomy or the right to be let alone — is fundamental,” the court said. “It is, perhaps, one of the most important rights guaranteed to the citizens of this State, and its separate textual protection in our Constitution reflects Montanans’ historical abhorrence and distrust of excessive governmental interference in their personal lives.”

Montana Court Justice Laurie Mackinnon specifically maintained that, contrary to the bill signed by Gianforte, the Montana State Constitution actually does protect abortion rights.

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified healthcare provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk.

That is pretty incredible, for reasons of "it's Montana." Hell, it's incredible that any court anywhere actually care whether or not things are factually or scientifically correct. Hopefully, this is a trend that will sweep the nation.

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