Abortion bills get committee vote Thursday

Legislative lawyers: Bills could violate state privacy protections

Rep. Amy Regier, R-Kalispell, testifies in support of HB140 in the House Judiciary Committee Wednesday. (MPAN)

Lawmakers on the House Judiciary Committee will vote Thursday on a series of proposals to limit abortions in Montana, part of a broader push by legislative Republicans to pass conservative social policies that stalled at the desk of a Democratic governor in past sessions. 

The bills would create restrictions around the margins of abortion law otherwise settled by the U.S. Supreme Court’s ruling in Roe v. Wade, which found the right to privacy guarantees access to the practice in all 50 states but is not absolute. 

Three of the bills, HB140, HB136 and HB171, would require doctors to offer ultrasounds to women seeking abortions; restrict when during a pregnancy a woman can get an abortion; and limit access to the drugs necessary to carry out a medical abortion, respectively. The fourth, HB 167, would ask the voters to approve the Born-Alive Infant Protection Act, providing that infants born alive after a failed abortion are “legal persons.” 

“I am not here to stop abortion — the law says that’s legal,” said Rep. Sharon Greef, R-Florence, in a Judiciary Committee hearing on her HB171 Tuesday. “But it’s to put safeguards in place to protect women.”

But advocates with Planned Parenthood, the American Civil Liberties Union and other groups view these bills as quite the opposite — not as safeguards, but rather as restrictions on women’s bodily autonomy, if not possibly abrogations of the considerable right to privacy guaranteed to Montanans by the state constitution.

Anticipation for pro-life legislation in Montana has been building across the political spectrum in the lead up to the 2021 session thanks to the budding governorship of Greg Gianforte, a Republican who campaigned in part on his “right to life” bona fides. His Democratic predecessor, Steve Bullock, on several occasions vetoed bills limiting access to abortion, including versions of legislation the committee is voting on Thursday. 

“We are in a different legislative world here in Montana than we’ve had in a really long time,” said Martha Stahl, the president of the state’s Planned Parenthood chapter. “In the past, bills like these were introduced, debated, and even passed on the floor, but there was a great deal of certainty about the Democratic governor’s veto of these bills. Now, that isn’t there.”

Twice, Bullock vetoed previous versions of the bill now known as HB136, introduced by Rep. Lola Sheldon-Galloway, R-Great Falls. It would effectively ban abortion after 20 weeks of pregnancy, based on the belief that a fetus can feel pain by that gestational age — a position that medical experts including the American College of Obstetricians and Gynecologists generally don’t share.

“Once proven that a fetus or immature human being, or life in the womb can feel pain, it would then in my opinion be unethical to intentionally harm an innocent human being in the development stages of pregnancy,” Galloway said. 

But aside from the science being far from settled, the legislation belies the complications that often come with so-called “late-term abortions,” Stahl said. 

“The vast majority of people who are getting abortions later in their pregnancy are dealing with wanted or desired pregnancies where something tragic has happened,” she said. “The health or life of the mother is in danger. In the vast majority of cases, they’ve already picked out names.” 

Less than one percent of abortions performed in Montana at Planned Parenthood clinics were after 20 weeks of pregnancy, the organization said. 

“There’s a framing of these bills as an attempt to protect the health and safety of patients,” Stahl said. “But I think it’s entirely ideological. It is healthcare providers who truly know how to protect the health and safety of their patients.” 

A concern for safety was certainly the framing around Greef’s HB171, which would set new guidelines on how and when women would get the two-pill combination needed to induce a medication abortion.

The chemical cocktail, commonly referred to as RU-486, blocks hormonal support to the uterus and then spurs uterine contraction to expel the fetus. 

Proponents say that these procedures are riskier than surgical abortions but have fewer regulations. 

“You don’t have protocols and these are more dangerous than surgical abortions,” said Susan Liebel, the state policy director of the Susan B. Anthony List, a national pro-life organization.

Under the bill, providers would be required to perform another in-person visit seven to 14 days after administering the drug, and patients would need to complete informed consent paperwork at least 24 hours before taking the RU-486. 

It would also prevent the delivery of the drugs by mail — something already illegal in federal law — create new reporting standards, increase legal liability for providers and direct doctors to tell their patients of the risk of death and “substantial and irreversible physical impairment of a major bodily function.” 

The proposed legislation would also provide a lengthy raft of documents that patients would have to initial, including 29 different aspects and provisions. It would require new reporting guidelines for both providers and mandate the state collect and track the information.

HB140, carried by Rep. Amy Regier of Kalispell, is similar in that it would also require doctors to provide more information about abortion to their patients — an attempt, opponents say, to give those seeking an abortion second thoughts about the proceure. 

It would compel doctors to tell women of the opportunity they have to view an ultrasound or listen to a fetal heartbeat. Unlike similar versions of the bill in other states, the bill would not make that ultrasound mandatory, rather creating an option. 

But ultrasounds generally aren’t medically necessary, Planned Parenthood and other opponents assert. 

Moreover, the bill “legislates the practice of medicine and would impose penalties on medical providers,” said Greg Dorrington, a lobbyist for the Montana Medical Association, which is opposing this and other anti-abortion legislation. 

Montana law under Title 50 also already requires discussion of the medical risks of having an abortion at different gestational ages, Dorrington told the Judiciary Committee on Wednesday. 

Supporters of the measure say it’s about giving women the same basis for making an informed decision that they would get in advance of any medical procedure. 

“Do we really trust women? We hear over and over in testimony that women need to be able to make personal decisions in concert with their healthcare provider and the government needs to stay out of that,” said Jeff Laszloffy, a former lawmaker who now heads the Montana Family Foundation, which has significant financial ties to the new governor. “So why do we treat abortion different than every other relationship with a healthcare provider?” 

The bill, however, would create a greater role for the government in the doctor’s office, asserts Laurel Hesse, a legislative program director with the ACLU of Montana. In fact, HB140 and the other anti-abortion bills this session could violate the state’s constitution, which has among the most stringent privacy protections in the country, she said.

“Regardless of whether it’s an offer (to view an ultrasound), the constitutional issues remain the same,” Hesse testified, referencing Armstrong v. State, a 1995 abortion case. 

“The Montana Supreme Court held that Article 2, Section 10 broadly guarantees each individual the right to make medical judgments … in partnership with a chosen healthcare provider free from the interference of government except in very limited circumstance,” Hesse said, adding that the bill seemed to be an attempt at dissuading women from accessing “constitutionally protected” medical care. 

Legislative legal analysts have not drafted notes on all four abortion bills. But for both HB136 and HB171, they warn of possible conformity issues with the state constitution, due to the same Article 2, Section 10 provisions. 

“Under Montana’s unique constitutional guarantee to the right of privacy, which provides broader protection of the right of privacy than is afforded under the United State Constitution, the Montana Supreme Court has interpreted the right to mean that a woman has a right to choose to have an abortion before viability unless the state can demonstrate a compelling interest for infringing the right,” the Legislature’s lawyers wrote in an analysis of HB136. 

The House Judiciary Committee, chaired by Rep. Barry Usher, R-Billings, will vote on all four bills Thursday, plus additional, equally controversial pieces of legislation concerning the rights of transgender Montanans.

Reporter Keith Schubert contributed to this story.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.
Darrell Ehrlick
Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.