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Abortion rights groups urge Supreme Court to continue Montana’s protections for women


Abortion rights groups urge Supreme Court to continue Montana’s protections for women

Mar 29, 2022 | 7:14 pm ET
By Keith Schubert
Pro-abortion rights groups petition Montana SupCo to uphold Armstrong decision after AG challenge
The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General's Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).

A series of reproductive rights groups are asking the Montana Supreme Court to uphold the 1999 court decision that affirmed the state constitution’s abortion protections after a challenge from the state Attorney General.

In an amicus brief filed in the state’s highest court last Thursday, the ACLU of Montana, the National Women’s Law Center and the Center for Reproductive Rights argued that overturning the Armstrong v. State decision would jeopardize access to abortion and broader constitutional privacy protections. The filing comes after the office of Attorney General Austin Knudsen asked the court to overturn the decision as part of the state’s appeal of a Yellowstone County District Court decision that temporarily blocked the implementation of three abortion restrictions passed in the 2021 legislative session pending a legal challenge by Planned Parenthood of Montana.

“This Court should uphold Armstrong to ensure that individuals, in particular members of marginalized communities, remain protected from state overreach into the most intimate and private zones of their lives,” the groups say in their filing. “Armstrong’s broad articulation of the right to privacy also protects often-marginalized individuals beyond the abortion context, preventing the state from intruding on personal decision-making simply because ‘a vocal and powerful constituency’ does not approve of or understand a relationship choice, medical condition or status.”

The National Women’s Law Center represented the plaintiffs in the landmark Armstrong case.

The groups contend that Armstrong correctly recognized that the explicit right to privacy in Article II, Section 10 of the Montana Constitution protects Montanans’ right to have an abortion, that other states have extended similar constitutional privacy provisions to protect the access to abortions. Overturning Armstrong would unravel privacy protections in the state beyond just abortion, the brief argues.

In August, Planned Parenthood of Montana challenged four laws passed with GOP support during the last legislative session that they say unconstitutionally restrict access to abortion in the state. And in October, a Yellowstone County District Court Judge temporarily issued a preliminary injunction on three of the bills.

“These laws are a clear and deliberate attempt by politicians to undermine and denigrate the Montana Constitution and attack its most vulnerable community members,” said Caitlin Borgmann, the executive director of ACLU of Montana, in a press release announcing the amicus brief. “The overwhelming support of Planned Parenthood’s legal challenge by myriad organizations signifies the importance of what is at stake here.”

Three bills fall under the injunction —  House Bills 136, 140 and 171, which, respectively, ban abortion after 20 weeks gestation, require doctors to offer ultrasounds to patients seeking an abortion, and ban prescribing of medication for abortions by mail, while also making it more challenging to get the medication prescribed in person. Not included in the preliminary injunction was House Bill 229, which would ban federal exchange health insurance plans from covering abortions in the state.

“Armstrong’s reasoning is a deeply flawed tribute to unrestrained judicial activism. Nowhere in Montana’s constitutional text is there a right to elective abortion,” the Attorney General’s filing from January reads. “Instead, the framers intentionally excluded abortion from the Constitution and left to the Legislature the prerogative to permit, prohibit, or regulate it.”

In the brief, the groups say high courts in states like Alaska, Florida and California interpreted their constitutions’ explicit privacy guarantees to include abortion as a fundamental privacy right.

“Armstrong is not alone. An explicit right to privacy necessarily guarantees that individuals can make personal decisions about family, procreation, and medical care, including choosing to end a pregnancy without unwarranted interference by the state,” the brief says.

And the groups rejected the argument that abortion should be excluded from constitutional privacy protections because it is not enumerated in the state constitution.

“The constitutional question is whether the right to privacy encompasses protection for personal and procreative autonomy, including abortion. It does,” the filing reads. “The Constitution’s drafters had an ‘unmistakable intent to textualize’ Montana’s broad concept of individual privacy by protecting citizens from ‘legislation and governmental practices that interfere with the autonomy of each individual to make decisions in matters generally considered private.'”

Lastly, the groups argue that Armstrong coupled with the ruling from Gryczan V. State, which, according to the filing, held that all adults have a right to privacy in non-commercial, consensual sexual conduct—regardless of whether dominant values approve of such conduct, cements privacy protections in the state and overturning Armstrong would have a rippling effect on broader privacy protections.

“Gryzcan and Armstrong are inextricably linked … Together, they hold that to fully exercise personal autonomy and self-determination, individuals must retain the right to make choices without State interference, especially those related to the most personal and intimate decisions, such as who to partner with and what medical procedures to undergo,” the filing says.

If overturned, the groups say some of Montana’s most vulnerable populations would bear the brunt of the decision.

“Expansive privacy rights have been critical for LGBTQIA people challenging laws that target them for discrimination, harassment and violence, as well as for people seeking to end a pregnancy,” the filing says. “Overturning Armstrong would threaten to unravel privacy protections beyond abortion, to the detriment of already vulnerable individuals and communities in Montana.”