Despite state court decisions holding that the state constitution provides a greater right to abortion than that provided in the U.S. Constitution and striking down several abortion-related laws, Montana, in recent years, has resumed efforts to protect women and unborn children. In 2012, Montana voters approved a ballot initiative requiring parental notification before abortion; and, in 2013, building on this momentum to protect minors and respect parental rights, the state legislature passed a measure, based on AUL model legislation, requiring notarized parental consent for a minor’s abortion.
- State court decisions have held that the Montana Constitution provides a greater right to abortion than does the U.S. Constitution. Under the auspices of these decisions, several Montana laws have been declared unconstitutional, including those limiting taxpayer funding for abortions; an earlier law requiring parental notice prior to a minor undergoing an abortion; requiring a 24-hour reflection period prior to an abortion; mandating that state-prepared, informed consent information be offered to a woman prior to an abortion; and requiring that only a licensed physician perform an abortion.
- Montana prohibits partial-birth abortion after the child attains viability.
- Montana “prohibits a physician from performing an abortion on a minor under 16 years of age unless a physician notifies a parent or legal guardian of the minor at least 48 hours prior to the procedure. Notice is not required if: (1) there is a medical emergency; (2) it is waived by a youth court in a sealed proceeding; or (3) it is waived by the parent or guardian. A person who performs an abortion in violation of the act, or who coerces a minor to have an abortion, is subject to criminal prosecution and civil liability.” In 2013, the state amended the law to require notarized parental consent and proof of identification. Both laws face legal challenges.
- Montana specifically allows physician assistants to perform abortions.
- The state has an enforceable abortion reporting law, but does not require the reporting of information to the Centers for Disease Control (CDC). The measure pertains to both surgical and nonsurgical abortions.
- Montana taxpayers are required by court order to fund “medically necessary” abortions for women eligible for public assistance. This requirement essentially equates to funding abortion-on-demand in light of the U.S. Supreme Court’s broad definition of “health” in the context of abortion.
- Montana allows residents in the state the choice to decide if they want health insurance or not, and which health insurance to buy if they choose to do so. As a result, if individuals, employers, and healthcare providers are not required to participate in a particular healthcare system, their freedom of conscience to object to providing or paying for certain services that are included in that system (e.g., abortion or life-ending drugs or devices) is protected.
- The state offers “Choose Life” license plates, the proceeds of which benefit pregnancy care centers and/or other organizations providing abortion alternatives.
- Montana maintains a “Freedom of Clinic Access” (FACE) law, making it a crime to block access to an abortion facility and restricting how close sidewalk counselors and demonstrators can be to the facility.
Legal Recognition and Protection of Unborn and Newly Born:
- Montana permits the prosecution of a third party who intentionally kills an unborn child who has reached at least 8-weeks development.
- Under Montana law, a person commits an offense if he “purposefully, knowingly, or negligently causes the death of a premature infant born alive, if such infant is viable.”
- The state allows a wrongful death (civil) action when a viable unborn child is killed through negligent or criminal act.
- The state has created a specific affirmative duty of physicians to provide medical care and treatment to infants born alive at any stage of development.
- Montana has a “Baby Moses” law, establishing a safe haven for mothers to legally leave their infants at designated places and ensuring the infants receive appropriate care and protection.
- Specific professionals are required to report any infant affected by drug exposure.
- Montana maintains a measure allowing a woman who loses a child after 20-weeks gestation to obtain a “Certificate of Birth Resulting in Stillbirth.”
- Montana bans cloning-to-produce-children, but not cloning for all purposes—thus making it a “clone-and-kill” state.
- The state does not prohibit destructive embryo research, and its prohibition on fetal experimentation applies only to fetuses born alive (i.e., it does not apply to aborted fetuses).
- Montana does not promote ethical forms of research.
- The state maintains no meaningful regulation of assisted reproductive technologies.
End of Life Laws:
- The Montana Supreme Court has stated that it ﬁnds nothing in Montana Supreme Court precedent or state statutes indicating that physician-assisted suicide is against public policy—thus potentially paving the way for physician-assisted suicide in the state.
Healthcare Freedom of Conscious:
Participation in Abortion and Contraception:
- On the basis of religious or moral beliefs, an individual, partnership, association, or corporation may refuse to participate in an abortion or to provide advice concerning abortion.
- A private hospital or healthcare facility is not required, contrary to religious or moral tenets or stated religious beliefs or moral convictions, to admit a woman for an abortion or to permit the use of its facilities for an abortion.
- Montana has a “contraceptive equity” requirement, meaning that health insurance coverage must include coverage for contraception. There is no conscience exemption for employers or insurers with a religious or moral objection to contraception.
Participation in Research Harmful to Human Life:
- Montana currently provides no protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral or religious belief.
What Happened in 2013:
- Without the signature of Governor Steve Bullock, Montana enacted a law, based on AUL model language, requiring notarized parental consent and proof of identification before a minor obtains an abortion. However, in Planned Parenthood of Montana v. Montana, the abortion giant filed a lawsuit challenging the state’s parental notice law (passed by ballot initiative in 2012) and new parental consent law.
- Montana considered legislation related to abortion funding, as well as a state constitutional amendment related to abortion.
- A bill that permits the prosecution of a third party who intentionally kills an unborn child (who has reached at least 8-weeks development) became law without the governor’s signature.
- Montana considered a measure to prohibit wrongful birth and/or wrongful life lawsuits.
- Montana considered both a bill to legalize physician-assisted suicide and a bill to criminalize the practice.
- The state did not consider any measures related to biotechnologies or rights of conscience.
Recommendations for Montana
Women’s Protection Project Priorities:
- Women’s Health Defense Act (5-month abortion limitation)
- Women’s Right to Know Act with reflection period
- Women’s Health Protection Act (abortion clinic regulations)
- Abortion-Inducing Drugs Safety Act
- Parental Involvement Enhancement Act
- Child Protection Act
- State constitutional amendment (providing that there is no state constitutional right to abortion)
- Abortion Mandate Opt-Out Act
- Defunding the Abortion Industry and Advancing Women’s Health Act
- Women’s Ultrasound Right to Know Act
- Coercive Abuse Against Mothers Prevention Act
- Prenatal Nondiscrimination Act
- Joint Resolution Commending Pregnancy Resource Centers
Legal Recognition and Protection for the Unborn:
- Crimes Against the Unborn Child Act (to protect a child from conception
- Unborn Wrongful Death Act
- Pregnant Woman’s Protection Act
- Human Cloning Prohibition Act
- Destructive Embryo Research Act
- Prohibition on Public Funding of Human Cloning and Destructive Embryo Research Act
Healthcare Freedom of Conscience:
- Assisted Suicide Ban Act