Republican lawmakers in a handful conservative states have hit a roadblock to what they thought would be an easy path to imposing new restrictions on abortion if it is upended by the Supreme Court Roe v. WadeDecision: Right-to-privacy protections are enshrined into their state constitutions.
In states where courts have ruled that their constitutions’ explicit privacy rights extend to the right of a woman to have an abortion, the procedure would continue to be legal even if the Supreme Court’s 1973 ruling is overturned, legal scholars and abortion-rights advocates said.
The Montana court is currently hearing the case. A state judge temporarily blocked three new antiabortion legislations. The state’s Republican attorney general appealed to the state Supreme Court, asking the justices to overturn a 23-year-old ruling that extended the state’s constitutional right to privacy to the right to have an abortion.
If all else fails, Roe v. WadeIf the ruling is reversed, conservative Montana could become a sanctuary for women seeking abortions in neighboring states like Wyoming, Idaho, North Dakota, North Dakota, South Dakota and South Dakota. These states have more limited access to abortions, according to an analyst from a research organization that supports abortion rights.
“If half the states ban abortion, you are talking about people, if they can, traveling vast distances to get that right to care,” said Elizabeth Nash, a policy analyst at the Guttmacher Institute. “And if access remains protected in Montana, then Montana will be a place where people seek that care.”
The U.S. Supreme Court will rule in the coming months on a case challenging a Mississippi law banning most abortions after 15 weeks. A Texas law banning most abortions after six weeks was recently upheld by the court. Citizens can now sue those who helped in the abortion.
The Mississippi case ruling legal experts speculateCould upend the Roe Decision that guaranteed abortion rights throughout the country and allowed individual states to establish their own laws. The Guttmacher Institute predicts that abortion in 26 states will soon be banned or restricted.
Meanwhile, lawmakers and citizens in other states — including New Jersey, New York, and Colorado — are working to protect or expand abortion rights.
Original Roe v. WadeThe ruling was largely based in protecting the right of privacy under clause 14th Amendment due process. But the words “right to privacy” aren’t actually written in the U.S. Constitution, a point frequently raised by abortion opponents.
These words are, however. the constitutions of 11 statesThis unexpected twist adds an unexpected twist to the process of sorting out a post.RoeLegal landscape
It’s not an issue for left-leaning states like California, which passed a 2002 law protecting abortion rights that cited its constitutional right to privacy for personal reproductive decisions. Leaders in that state are preparing for a potential rushWomen from other states will seek medical care if it is weakened or thrown out by the Supreme Court Roe decision.
But conservative Alaskans are able to afford it. abortion rights advocates say the constitutional right to privacy will protect a woman’s option there regardless of what the U.S. Supreme Court does. Voters will decide whether to call a Constitution Convention, which abortion opponents view as an opportunity to amend and ban abortions.
In Florida, the state constitution says that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” In 1989, the Florida Supreme Court foundThe provision protects the right of abortion.
Louisiana’s state constitution protects its citizens against invasions of privacy, but voters passed a constitutional amendment in 2020, inserting that “nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
The constitutions of Arizona and Hawaii, Illinois, Montana. New Hampshire, South Carolina, South Carolina, Washington also contain right-to-privacy provisions.
Montana’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.”
1999 was the year of the Montana Supreme Court ruledThis includes the right for citizens to make their own medical choices. “We held that this right protected a woman’s right to procreative autonomy and her ability to seek and obtain a lawful medical procedure, which abortions were and are, free from interference from the government,” retired Montana Supreme Court Justice James Nelson, who wrote the court’s unanimous opinion, said in a recent interview.
Caitlin, the executive director at the Montana ACLU described succinctly the importance of this ruling. “It is essentially Montana’s Roe v. Wade,” she said.
The Republican-controlled Montana Legislature, buoyed by the state’s first Republican governor in 16 years, passed a slate of anti-abortion bills last year. They included a ban on most abortions after 20 weeks of pregnancy, the requirement that providers give a woman the opportunity to view an ultrasound before an abortion, and constraints on the use of abortion pills, including that an authorized abortion provider first examine and then give the woman the drug in person, an added obstacle in a rural state like Montana.
Planned Parenthood of Montana filed a lawsuit that said those bills violate the state’s constitutional right to privacy, along with rights to equal protection, safety, health and happiness, individual dignity, free speech, and due process. In October, Billings Judge Michael Moses granted an injunction to prevent the laws’ implementation.
That ruling prompted one Republican lawmaker, Rep. Derek Skees, to call for throwing out “Montana’s socialist rag of a constitution,” according to the Flathead Beacon. “There’s no basis in our constitution to use the right to privacy to murder a baby,” he told the newspaper.
Austin Knudsen is the Attorney General has asked the Montana Supreme Court to overturn Moses’ injunction and nullify the 1999 ruling that linked privacy rights to medical decisions. Knudsen said the court’s seven members have a chance to correct what he called “unrestrained judicial activism,” according to legal filings.
David Dewhirst, Montana’s solicitor general under Knudsen, called the 1999 decision “sloppy” and “a mess.”
“This is not some sort of political stunt,” Dewhirst said. “The case is wrongly decided.”
Martha Fuller, president and CEO of Planned Parenthood of Montana, said she believes Knudsen’s attempt to overturn the state court’s 1999 privacy ruling echoes the larger national debate over court precedents in abortion law. “The law is the law and not based on, ‘This judge said this, and this other judge said that,’” Fuller said. “That’s not where the integrity of our legal system comes from.”
If the state’s high court rules against Knudsen, abortion advocates anticipate that lawmakers will ask voters to alter the state’s constitution, either through an amendment or by initiating a constitutional convention, which would be Montana’s first in more than five decades.
Changing the state’s constitution, however, is purposefully difficult, said Anthony Johnstone, who teaches constitutional law at the University of Montana. Just to ask voters to consider an amendment or a convention requires 100 votes in the state’s 150-seat legislature.
“Montanans always have the last word in amending our constitution,” Johnstone said.
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