Montana Attorney General wants state Supreme Court to consider Dobbs decision in abortion appeal

Montana Attorney General Austin Knudsen is asking the Montana Supreme Court to consider last week’s U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization in an appeal of four abortion laws before the court.

Planned Parenthood of Montana sued the state last year over four laws that were passed during the 2021 legislative session that would restrict access to abortion in the state. A district court issued a preliminary injunction for three of the four laws, meaning they are not currently in effect.

Knudsen appealed the order granting the preliminary injunctions, and this is the case pending in the Montana Supreme Court. Monday, Knudsen filed a Notice of Supplemental Authority regarding the Dobbs case, which on Friday overturned Roe vs. Wade and the right to abortion via the right to privacy.

In the Notice of Supplemental Authority, Knudsen asks the court to call on the parties to present arguments based on Dobbs. Knudsen argued that Armstrong v. State of Montana, which protected abortion in Montana based on the right to privacy, was tied to the same “right to privacy” intrinsic in Roe.

“Given Armstrong’s explicit reliance on Roe and other federal authorities, Dobbs is ‘pertinent and significant’ authority affecting the disposition of questions raised in this case — even at the preliminary injunction stage,” the notice read. “Given the breadth of Dobbs, the State invites the Court to order supplemental briefing that can fulsomely address Dobbs’ effect on the issues presented in this appeal.”

Knudsen, in his request, stressed one of the key findings in the Dobbs’ decision: The importance of returning the question of abortion to elected representatives.

“Dobbs concluded that ‘(a)bortion presents a profound moral question’ and that question should ‘return … to the people and their elected representatives.’”

President and CEO of Planned Parenthood of Montana Martha Fuller said this notice in no way changes the organization’s strategy moving forward.

“Here in Montana, we have always relied not on Roe, not on the U.S. Constitution, but on our Montana Constitution,” Fuller said to the Daily Montanan on Tuesday. “The Armstrong case is sort of a seminal case about access to abortion care in Montana, and that was based on the Montana Constitution and so stands alone, regardless of what happens at the federal level.

“That has always been our argument, and it continues to be our argument.”

The temporarily enjoined laws that are still being contested by Planned Parenthood at the district level include a ban on most abortions after 20 weeks with criminal penalties for doctors violating the ban; an end to abortions through medication via telehealth; and a requirement that patients seeking an abortion first view an ultrasound.

Planned Parenthood also challenged a law that would prohibit Affordable Care Act insurance plans from covering abortions, but the law was not included in the preliminary injunction.

This filing was submitted the same day a motion to begin the process of drafting a bill to codify abortion access in Montana failed on a tied vote in the Children, Families, Health and Human Services Interim Committee of the legislature.