The state of Montana is one step closer to enacting a series of restrictions on abortion — including banning the procedure after 20 weeks of gestation — following a lengthy, emotional proceeding on the House floor Monday.
The House of Representatives gave preliminary approval on party lines to four such bills on second reading, the penultimate procedural motion before the bills are passed to the Senate.
The body also approved — though with significantly less agreement among the GOP — two bills concerning the rights of transgender Montanans, one which would require student athletes to compete on sports teams corresponding to their gender assigned at birth and another that would penalize doctors for administering gender-affirming care to minors. These, too, await a final vote before moving to the upper chamber.
Rep. Geraldine Custer of Forsyth, a Republican who voted against both of the transgender bills, said the legislation goes against the values of liberty and self-determination that conservatives say they hold dear.
“I’ve been a Republican when it wasn’t cool,” Custer said. “All those years, the principles of the party were drilled in my head: less taxes, less regulation, and ensuring personal freedoms. This bill flies in the face of two of these.”
However, Custer and the rest of her caucus unanimously supported the abortion legislation, a top priority of Republicans this session. The caucus is making a renewed push to enshrine the “right to life” in state law following numerous attempts in previous sessions that ultimately fell to a veto from one of two consecutive Democratic governors.
The arguments on House Bills 140, 136, 171 and 167 fell on predictable lines, with Republicans and pro-life advocacy organizations claiming the bills were necessary to create a structure of informed consent around abortion and to create legal agency for fetuses.
Opponents raised concerns that restricting abortion in this way violated patient privacy, inserted the government where it shouldn’t be, and above all made it unreasonably difficult to obtain a form — albeit controversial — of healthcare.
“This is the worst kind of government overreach,” said Rep. Denise Hayman, D-Bozeman, on HB171, which would restrict medication abortions. “It creates undue and medically unnecessary barriers between patients and the medical care they deserve.”
But Republicans said that arguments about the women’s rights were secondary to the need to enshrine the rights of those they believe to be the most “vulnerable among us.”
“This is not so much about the father or mothers’ rights or the practitioners’ decision,” Rep. Lola Sheldon-Galloway, R-Great Falls, said on the floor. “A fetus, an immature human being, can feel pain. It would then be in my opinion unethical to harm an innocent human being in the developmental stages of pregnancy.”
Her bill, HB136, would ban abortion after 20 weeks of gestation, a time at which proponents believe the fetus can feel pain — though the science on this concept isn’t settled.
HB140 would require doctors to provide those seeking an abortion with the opportunity to view an ultrasound or listen to a fetal heart beat, while HB171 would create a series of regulations, a raft of paperwork and substantial legal exposure for providers who offer the chemical compound necessary for a medication abortion.
It would also restrict the required medication from being mailed to patients, a practice that was briefly legal during the pandemic, which proponents say is necessary to ensure that medication abortions are carried out safely and with oversight.
HB167, sponsored by Kalispell Republican Rep. Matt Regier, would put to the voters in 2022 a ballot measure to criminally penalize doctors who don’t take all “medically appropriate and reasonable actions” to save a baby born alive following an abortion, something which opponents have described as political theater that ignores the fact that doctors in the state are already required to care for a “viable” infant.
House Speaker Wylie Galt, R-Martinsdale, said the body was hearing the four abortion bills on Monday to correspond with the 2021 March for Life, an annual pro-life rally in late January proceeding in a somewhat diminished form this year due to the pandemic.
“These bills will protect the health and safety of women and their unborn children,” he said.
All four bills passed second reading on party lines. Even some Democratic lawmakers who historically have bucked the party line on abortion, such as Rep. Jonathan Windy Boy, D-Box Elder, voted against each piece of legislation.
“This is going beyond even what I believe,” he said.
Other opponents pointed out that the proposals could face litigation if enacted due to the substantial privacy protections in the Montana Constitution and the potential legal challenges associated with compelling a doctor to offer a certain procedure, in the case of HB140.
“These bills are driven by ideology that interfere with the integrity of the patient provider relationship,” said Laura Terrill, the vice president for external affairs for Planned Parenthood Advocates of Montana, in a press conference after floor action Monday.
House Bills 112 and 113 engendered similar debate, though with less predictable outcomes. On the former, which requires student athletes up through the university level to participate on sports teams that correspond with the gender assigned to them at birth — legislation that conservative groups in legislatures across the country have pushed as the “Save Women’s Sports Act” — five Republicans joined Democrats in voting no.
Rep. John Fuller, R-Whitefish, the sponsor of both bills, framed them as protecting cisgender women who feel they’re being wronged by competing with transgender women in interscholastic sports, or, in the case of HB113, children and teens who pursue medical treatment like puberty blockers or hormonal treatments without an understanding of the ramifications of transitioning.
“It is another tool by which we can protect children,” he said on the floor.
HB113, which would essentially bar doctors from administering gender-affirming care to minors experiencing gender dysphoria, proved even more divisive among Republicans. It scraped by on a 53-47 vote, with more than a dozen Republicans voting no.
Custer, one of the Republicans who voted in opposition, called HB112 a “solution in search of a problem” that compromised the local control of school boards, and agreed with some of her Democratic colleagues who warned of legal challenges or the type of economic backlash that North Carolina saw after the legislature there passed the so-called “Bathroom Bill.”
In Idaho, a federal judge temporarily blocked nearly identical legislation to HB112 following a lawsuit from the American Civil Liberties Union on equal protection grounds. An eventual ruling on that case could provide clarity on the ramifications Montana might face if it passes the bill.
Either way, opponents are promising to seek redress in the courts — both on the abortion legislation and on the bills affecting transgender Montanans.
“We are prepared to bring legal challenges,” said Caitlin Borgmann, the ACLU of Montana’s executive director. “We’ve done it in the past, and we’re prepared to do it again. These bills are unconstitutional, and they won’t hold up in court.”