Three bills that would ban abortion are still moving through the Montana legislature. The bans in these bills span the pregnancy timeline, showing that the true intent behind all of this legislation is to eliminate abortion as an option for Montana women. Two bills would ban abortion later in pregnancy (one at 20 weeks and another at "near-viability"); the third bill would prohibit not only abortion from all stages of pregnancy but also birth control, emergency treatment for ectopic pregnancies, and more. The scattershot approach and blatant unconstitutionality of all three measures demonstrates supporters’ desire to get anything passed that will make progress toward the ultimate goal of eliminating a woman’s right to determine the course of her own pregnancy.
In 1973, the Supreme Court decided Roe v. Wade, which established that the right of privacy in the United States Constitution encompasses a woman’s bodily autonomy, including her right to decide whether to continue or terminate a pregnancy. The Court has continually reaffirmed this principle, including as recently as last year, in Whole Women’s Health v. Hellerstedt. The Montana Supreme Court has held that our Montana Constitution has even stronger privacy protections, including for women’s reproductive autonomy.
To this day, the U.S. Supreme Court has never wavered from the principle that states may not prohibit abortion until the point of fetal viability, which means the point at which the fetus is capable of maintaining life outside the woman’s body. Because every pregnancy is different, the Court has made clear that only a physician can determine fetal viability on a case-by-case basis. Moreover, even if a state bans abortions of viable fetuses, it must always include exceptions for abortions necessary to protect the pregnant woman’s life or health.
SB 282, SB 329, and HB 595 are all flatly unconstitutional under these precedents. SB 282, which bans abortions when the fetus could potentially survive outside the uterus, does not make sufficiently clear who will determine whether that is the case. The ban also lacks the constitutionally required exception for a woman’s life or health.
"Their goal is not to protect women’s safety, or to pass laws that respect women’s autonomy."
Similarly, SB 329, which is premised on the scientifically contested claim that fetuses can feel pain at 20 weeks, actually does nothing to address that issue. Rather, it outright bans abortions starting at 20 weeks’ pregnancy, well before a fetus is viable. It, too, has inadequate protections for a woman’s life or health. And to add insult to injury, it allows the “father of the fetus” to file a lawsuit if a woman should seek an abortion in violation of the statute, dragging her into legal proceedings in which her anonymity is not guaranteed. That’s true even if the sex was coerced. Yes, you read right: There are no exceptions for cases of rape or incest.
Finally, HB 595 would designate zygotes, blastocysts, and embryos onward as legal persons. The implications of this are horrifying, bizarre, and too numerous to catalog here. Suffice it to say that women with life-threatening ectopic pregnancies could not be treated, miscarriages could be investigated as murder, and emergency contraception and abortions would be banned.
Proponents of these bills are fully aware of their constitutional infirmities, but their goal is not to protect women’s safety, or to pass laws that respect women’s autonomy. As the testimony made clear, they want to ban all abortions, whether they get there by chipping away at the right later in pregnancy, or by drastically banning abortions and other necessary healthcare throughout pregnancy. That is not what Montana, the state that sent the first woman to the United States Congress, should stand for.
