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Montana should be celebrating its rights … like it’s 1999

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Montana should be celebrating its rights … like it’s 1999

Jul 07, 2022 | 6:51 am ET
By Darrell Ehrlick
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Montana should be celebrating its rights … like it’s 1999
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Abortion rights rally at St. Paul, Minnesota (Courtesy of Lorie Shaull/Flickr, used by CC-SA. 2.0).

Funny how the normal bluster about activist courts and judges has nearly single-handedly died during the past two weeks from folks on the right side of the political spectrum.

Overturn reproductive freedom, jeopardize tribal sovereignty, give money to religious schools, wholly discount climate change, and the crickets chirping seems to have replaced the wailing of conservatives concerned about activist judges and judicial overreach.

Thankfully, our brand of conservatives here in Montana is a bit more hardy than those coastal conservatives, and they’re not quite done waging war on the courts. Twice this year, Montana Attorney General Austin Knudsen has asked the Montana Supreme Court to overturn the landmark 1999 decision, Armstrong vs. State of Montana, which established that the privacy clause of the Montana Constitution protects the decisions between a doctor and a patient, including abortion.

I read the decision, and you can, too. (It can be found here.)

Though arch-conservatives like Knudsen believe it’s proof positive of an activist judiciary, the opinion isn’t as much of a legal discourse as it is a clear, straightforward approach to the (ahem) text’s simple meaning combined with a careful historical reading going back to the Montana Constitution’s founders.

Article 2, Section 10 of the state’s constitution says:

“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

That one sentence is really the bedrock of the legal argument, and our own state constitution grants us more rights than the federal one. If the founders were divinely inspired to create the U.S. Constitution in 1789, then Montana’s exercise in democracy would have to be super-divine.

Montana’s own protection of abortion is wholly unattached to the federal constitution. In other words, Montana’s protection has little to do with Dobbs vs. Jackson Women’s Health, and much more to do with our own words and our state government.

And the 1999 ruling for which former Justice James C. Nelson is so often maligned is really nothing more than a restatement of history and early court precedent, far from inventing the right out of whole cloth, which is nothing more than the fanciful fever dreams that Knudsen has created in order to stoke conservative fear.

Even before the Armstrong decision, Montana judges had discussed the personal privacy interests that would allow two consenting adults to do whatever they wanted in their bedroom. And 30 years ago, legal scholars believed the state’s constitution may even extend as far as to permit a person and doctor to perform euthanasia.

What is historically irrefutable is that even the delegates at the Constitutional Convention considered the topic of abortion, and whether to include that in the document itself, and – in a stroke of genius – decided not to define the limits of personal liberty.

Full stop.

“We had much discussion before the (Bill of Rights Committee) and why not try to define the right, to put in specific examples. But it was our feeling that once you do that, you are running a risk that you may eliminate other areas in the future which may be developed by court,” said Delegate Bob Campbell.

In 1999, the state’s Supreme Court did double duty as historians and legal scholars.

“That the convention delegates deliberately drafted a broad and undefined right of ‘individual’ privacy was more a testament to and culmination of Montanans’ continuous and zealous protection of a core sphere of personal autonomy and dignity than it was an attempt to create a greater right than that which existed by historical precedent,” Nelson wrote as part of the Armstrong decision.

Judge Jeffrey Sherlock, the trial court lawyer who first considered the case,  wrote of individual privacy and birth control so succinctly, it’s nearly impossible to argue, “If the right to privacy includes anything, it includes the decision of a woman whether or not to beget or bear a child…(and it) encompasses a woman’s choice of whether or not to end her pregnancy.”

Moreover, the Constitutional Convention specifically rejected an attempt by a delegate to confer status to a fetus at the time of conception, showing that not only is Armstrong in line legally, but it’s also in line historically with framers of the constitution. That they discussed, debated and decided not to include prohibitions against abortion speaks loudly.

In one of the most brilliant passages of Armstrong, Nelson argues that pro-life zealots must also be careful about how much power they wish the government to have when it comes to abortion, because history – not necessarily the law – is replete with examples of that going astray. Pointing to the examples of those who were sterilized in the name of government-supported eugenics, Nelson writes, “For if the state has the power to infringe the right of procreative autonomy in favor of birth, then, necessarily, it also has the power to require abortion under some circumstances.”

And, then, as if peering into a crystal ball a quarter century in the future, Nelson predicts 2022 perfectly.

“Unless fundamental constitutional rights – procreative autonomy being the present example – are grounded in something more substantial than the prevailing political winds, (Aldous) Huxley’s ‘Brave New World’ or (George) Orwell’s ‘1984’ will always be as close as the next election.”