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Montana seeks to overturn court ruling on abortion access

by AMY BETH HANSON
| January 25, 2022 7:00 AM

HELENA, Mont. (AP) — Montana's attorney general is asking the state Supreme Court to overturn a 1999 opinion that found the state constitution's right to privacy guarantees a woman's access to an abortion — the opinion Planned Parenthood is using to challenge three new abortion laws.

Attorney General Austin Knudsen's brief, filed Wednesday, also asks justices to vacate a preliminary injunction that prevented the new abortion laws from taking effect.

He argues the abortion laws passed by the 2021 Montana Legislature "unquestionably enhance the health and safety of Montana women," and represent basic regulations on the practice of medicine.

Medical experts broadly dispute that the new laws would make the procedure safer.

The laws being challenged would ban abortion after 20 weeks of pregnancy, restrict access to abortion pills and require abortion providers to ask patients if they would like to view an ultrasound or hear the fetal heartbeat. Montana passed the laws as Republican-controlled legislatures in other states enacted legislation to restrict abortions.

District Court Judge Michael Moses in Billings granted the injunction in October in a case filed by Planned Parenthood, finding that women seeking abortions would be "irreparably harmed through the loss of their constitutional rights" if the laws were to take effect while the legal challenge is ongoing.

Planned Parenthood argued the laws violate Montana's constitutional right to privacy, which they say protects access to abortion before the fetus is viable, generally at 24 weeks of pregnancy.

The state's brief argues the Supreme Court's 1999 Armstrong ruling "invented from whole cloth a state constitutional right to elective abortion even though the framers of the Montana Constitution were perfectly clear that decisions about abortion policy are to be firmly in the hands of the Legislature."

In the Armstrong ruling, Justice James C. Nelson said the constitutional right to privacy led to a right to personal autonomy that included the right to make medical judgments affecting bodily integrity and a woman's right to obtain a pre-viability abortion, the brief states.

"Armstrong's reasoning is a deeply flawed tribute to unrestrained judicial activism," Knudsen wrote.

"Attorney General Knudsen's request is nothing more than a meritless political stunt and an attack on the people of Montana who have the right to make decisions about their own health care, without political interference," said Martha Fuller, president and CEO of Planned Parenthood of Montana.

In 1973, the landmark U.S. Supreme Court decision in Roe v. Wade found a fetus was not a constitutional person until after the second trimester of pregnancy, or after about 28 weeks of pregnancy. A 1992 U.S. Supreme Court decision established viability at around 23 or 24 weeks.

Montana's new law seeks to ban abortions after 20 weeks, after which the state Legislature said the fetus can feel pain.

Knudsen's appeal also argues that due to improvements in medical technology, fetal viability can occur at 22 weeks. Given the margin of error in estimating the age of a fetus, the state argues the 20-week limit ensures the fetus could not survive outside the womb.

The informed consent law requires a person performing an abortion to give the woman the opportunity to view an ultrasound and listen to the fetus' heartbeat. It does not mandate that patients view or listen, but requires them to sign an acknowledgement that they were given the opportunity.

A third law requires the informed consent to take place 24 hours before the woman is administered drugs to cause an abortion. It also requires that the drugs be dispensed in person so a medical provider can watch for complications, and for a follow-up visit to be scheduled.

Planned Parenthood argued the new laws would have a disproportionate impact on people in rural areas, low-income families and Native Americans.