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Governor asks Montana high court to reverse 1999 abortion ruling

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Gov. Greg Gianforte speaks during a press conference

Gov. Greg Gianforte speaks during a press conference inside the state Capitol in January.

Montana’s governor is asking the state’s high court to consider his arguments that justices should reverse a previous decision upholding the right to access an abortion and instead put the matter in state legislators’ hands.

The brief argues that because the U.S. Supreme Court overturned Roe v. Wade in the recent decision Dobbs v. Jackson Women's Health Organization, which protected access to abortions at the federal level, Montana’s court should “revisit its decision in Armstrong v. State.” That’s the 1999 decision that concluded the right to privacy in the state’s Constitution includes the right to access an abortion.

"It's the Legislature's prerogative to set policy regarding life, as it was for over a century until 1999," Gianforte wrote in a tweet Tuesday. "I urge the Montana Supreme Court to reconsider its role in light of Dobbs and return policymaking to the Legislature."

In the Tuesday filing, general counsel Anita Milanovich wrote that Armstrong’s conclusion “relied in part on Roe v. Wade” and therefore needs to be considered again. 

“The court will need to re-assess without Roe the limits of its authority to interpret a constitutional right to include that which was expressly intended and believed to be excluded from the Declaration of Rights and instead reserved to the Legislature,” the brief reads.

The state Supreme Court has not said yet if it will accept the brief.

The case before the court deals with four abortion laws passed by the 2021 Legislature, three of which are on hold while a lawsuit challenging them plays out.

The laws blocked for now would ban abortions after 20 weeks gestational age; require a woman to be informed of the option to view an ultrasound before an abortion; and require informed consent before a drug-induced abortion and block providing the medication through the mail.

In January and again after the Dobbs decision in June that overturned Roe, Republican Attorney General Austin Knudsen asked the court as a part of that case to reverse Armstrong. Following a leak of the Dobbs decision, Gianforte said he would support a special session to ban abortion in Montana “ … if we have a path that is defensible in the courts here in Montana and we have a consensus in the Legislature," according to reporting from Montana Public Radio.

The governor campaigned on restricting abortion in Montana and held a ceremony when he signed the legislation that was later challenged. The state Republican Party also recently updated its platform to call for a ban on “elective abortions” during its convention in July. Republicans are two seats away from a supermajority in the state Legislature.

The period for filing briefs in the case ended April 15, and Gianforte's request to file his brief notes justices have not yet said if they'll consider hearing more.

Some of Gianforte’s brief echoes a previous filing from Knudsen arguing that the state Constitution's delegates meant to leave the matter of abortion to the Legislature.

“The Montana Constitution cannot properly be interpreted to include the right to an abortion,” the brief argues “This policy question should be returned to the Legislature where it was understood to belong.”

Some of the remaining delegates, however, have filed a counter brief saying that’s not the case and their intent in crafting the 1972 document was for the courts to decide.

Tuesday’s brief also says that there were no efforts through the Legislature or courts to amend or repeal the state’s abortion laws in response to Roe until the Armstrong decision in 1999, and uses that as reasoning the Constitution was not meant to ensure access to abortions.

“That in turn can only be because everyone took the delegates at their word and understood what the Montana Constitution meant from its inception: the Montana Declaration of Rights does not recognize a constitutional right to an abortion.”

In past briefs, Planned Parenthood of Montana, who brought the lawsuit last year challenging the new abortion laws, has argued that Armstrong remains correct and their case isn't the place to revisit it.

In a statement Tuesday, Martha Fuller, the president and CEO of Planned Parenthood of Montana, reiterated those arguments.

" .. The governor’s motion and brief are an attempt to introduce the Dobbs decision into a case where it has no relevance. Montanans’ constitutional right to privacy protects the right to seek and obtain an abortion — full stop," Fuller said in an emailed statement. "This was the case before the Dobbs decision and it remains the case. In addition, the governor’s insistence that the Legislature has the final say on the restriction or elimination of a fundamental right is an insult to Montanans and our Constitution.”

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Head of the Montana State News Bureau

State Bureau reporter for Lee Newspapers of Montana.

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