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Knudsen asks Montana Supreme Court to overturn abortion protection, correct ‘judicial activism’


Knudsen asks Montana Supreme Court to overturn abortion protection, correct ‘judicial activism’

Jan 20, 2022 | 7:18 pm ET
By Keith Schubert
Knudsen asks Montana Supreme Court to overturn abortion protection, correct ‘judicial activism’
The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

The Montana Attorney General is asking the Montana Supreme Court to overturn the 1999 court decision that underpins the state constitution’s abortion protections amid a legal battle over a series of abortion restriction bills passed this year.

The office of Attorney General Austin Knudsen made this argument Wednesday as part of the State’s appeal of a Yellowstone County District Court decision that temporarily blocked implementation of three abortion bills pending a legal challenge by Planned Parenthood of Montana. The state filed its notice of appeal in October, and after two extension requests, filed its first brief on Wednesday.

The bills under injunction are 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 the prescribing medication for abortions by mail, while also making it more challenging to get the medication prescribed in person. Planned Parenthood also challenged the constitutionality of HB229, which would ban federal exchanged health insurance plans from covering abortions in the state, but the law was not part of the preliminary injunction.

“All three laws unquestionably enhance the health and safety of Montana women. And they represent basic regulations of the practice of medicine—bread-and-butter exercises of (state government),” the state’s appeal reads.

At the crux of Planned Parenthood’s argument was the unanimous 1999 Armstrong v. State decision, which tied access to an abortion in Montana to the state constitution’s robust privacy protections. The ruling stands to protect at least some access to abortion for Montanans even if Roe v. Wade, the decision that federally protects abortion access, is overturned by the U.S. Supreme Court, which is expected to issue a ruling soon on a case out of Mississippi that could weaken the high court’s 1973 decision.

In its filing, the state argues that the responsibility to regulate access to abortion falls in the hands of the Legislature, and the 1999 state Supreme Court was flawed when it extended Montana’s privacy protections to abortion access. On Thursday, the Supreme Court rejected the state’s brief citing formatting issues and asked for it to be resubmitted.

“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 filing reads. “Instead, the framers intentionally excluded abortion from the Constitution and left to the Legislature the prerogative to permit, prohibit, or regulate it.”

In an emailed statement, Planned Parenthood of Montana’s president and CEO Martha Fuller called the AGs request to overturn the landmark ruling a “meritless political stunt.”

“We hope the Montana Supreme Court sees this stunt for what it is and affirms the state constitution which clearly protects the right to privacy and access to safe abortion services in Montana,” Fuller said.


As Republicans, bolstered by a same-party governor for the first time in 16 years, introduced a slate of bills restricting access to abortion during the last legislative session, pro-abortion rights advocates continually cited the Armstrong decision as to why the bills would ultimately be ruled unconstitutional. The newly passed bills have had past success in the state Legislature but were continually vetoed by consecutive Democratic governors.

The State argued the right to “personal autonomy” protected by Article II, Section 10 of the state constitution aimed to protect Montanans from things like illegal government surveillance and was not meant to be extended to abortion.

“Yes, the right to privacy is explicit in the Montana Constitution — unlike its federal counterpart — but the right to an abortion appears in neither,” the State argues. “Instead, the right is entirely judge-made, arising from the sociological convictions of seven justices.”

Retired Justice James Nelson, who authored the unanimous Armstrong decision, wrote Article II, Section 10, “protects a woman’s right of procreative autonomy” and “the right to seek and to obtain a specific lawful medical procedure, a pre-viability abortion, from a health care provider of her choice.”

But the State argued in its filing that the right to “personal autonomy” protected by Article II should not extend to abortion.

“Justice Nelson reasoned that ‘procreative autonomy’ —a term used for the first time in his opinion—is a form of ‘personal autonomy,'” the filing says. “In just a few sentences, therefore, Armstrong remarkably located a right to pre-viability abortion in a constitutional provision meant to prevent government snooping.”

Ultimately, the state argues, Armstrong was a “breathtaking exercise in judicial activism,” is “manifestly wrong” and has created quandaries related to the State’s exercise of traditional police powers.

“It (Armstrong) is unworkable, and Montana women don’t need it. It should infect Montana’s jurisprudence no longer. The Court should overrule Armstrong,” the filing reads.

In August, Planned Parenthood sued the state over the four bills, all of which impose various new conditions around abortion access, arguing they violate the heightened right to privacy established in the state constitution. After a flurry of last-minute filings a judge change and a temporary restraining order, Yellowstone County District Court Judge Michael Moses ultimately sided with the plaintiffs saying three of the bills appear unconstitutional under the State’s right to privacy and would cause irreparable harm to Planned Parenthood and its clients if they went into effect as planned on October 1, 2021.

“(Planned Parenthood of Montana) and their patients will be irreparably harmed through the loss of their constitutional rights, thus the preservation of the status quo is necessary to prevent that harm,” Judge Moses wrote in his October order blocking the laws from going into effect.

But on Wednesday, the state argued Moses erred in issuing the preliminary injunction by applying incorrect standards and asked for the decision to be vacated.

“The court below bungled the preliminary injunction standard, wrongly subjected each of the new laws to strict scrutiny, and plainly ignored the State’s evidence, arguments, and interests,” the filing says.”Each error independently justifies reversal; this court should therefore do its duty, lift the injunction, and allow these commonsense, democratically enacted laws to take effect.”