Lawyers question if bill on Montana privacy rights and abortions is constitutional

Bill’s sponsor: ‘Our right to privacy should not apply to abortion’

By: - January 17, 2023 5:11 pm
Sen. Keith Regier, R-Kalispell, testifies in favor of Senate Bill 154 in front of the Senate Judiciary Committee on Tuesday, Jan. 17, 2023.

Sen. Keith Regier, R-Kalispell, testifies in favor of Senate Bill 154 in front of the Senate Judiciary Committee on Tuesday, Jan. 17, 2023. (Photo by Blair Miller, Daily Montanan)

Montana taxpayers might again be on the hook to pay for the state to defend a law that is unconstitutional, according to opponents of a bill that aims to declare that the right to an abortion should not be covered as a privacy right under the state Constitution.

Senate Bill 154, sponsored by Sen. Keith Regier, R-Kalispell, seeks to add language to statute that declares that “the right of individual privacy … does not create, and may not be construed as creating or recognizing, a right to abortion or to governmental funding of abortion.”

The Montana Supreme Court, in the 1999 Armstrong vs. State decision, found that the right to privacy means a woman can choose to have an abortion “unless the state can demonstrate a compelling interest for infringing the right,” according to a legal note added to the bill. It said the legislation “raises potential conformity issues” with the Montana Constitution.

While the Senate Judiciary Committee heard roughly equal amounts of testimony in favor and opposed to the bill Tuesday morning, several attorneys opposed to the bill said lawmakers do not have the authority under the Constitution to interpret the law.

Attorney Mike Meloy answers questions from lawmakers in the Senate Judiciary Committee. Meloy testified in opposition to Senate Bill 154.
Attorney Mike Meloy answers questions from lawmakers in the Senate Judiciary Committee. Meloy testified in opposition to Senate Bill 154. (Photo by Blair Miller, Daily Montanan)

“It doesn’t take an expert in constitutional law to know that this bill is blatantly unconstitutional,” said Mike Meloy, an attorney and former legislator. “All this bill is going to do is create a challenge that is going to succeed because you don’t have the authority to pass this bill.”

However, proponents of the measure argued that the U.S. Supreme Court’s decision in the Dobbs case last year gave state legislatures the ability to reexamine their state’s laws surrounding abortion and said Regier’s bill was doing just that.

Jeff Laszloffy, the president of the Montana Family Foundation, called abortion rights “a judicially-crafted invention” because the term is not in the Constitution. He said Regier’s bill “corrects the mistake” made by the Montana Supreme Court in the Armstrong decision.

But multiple attorneys who spoke in opposition to the bill agreed that it raises questions as to whether lawmakers even have the authority to try to make such a law because of separation of powers.

Attorney Erin Erickson said previous Montana court rulings have found when the legislature tries to interpret the language of the Constitution, those attempts were unconstitutional. She said she believes SB154 would be found to be unconstitutional as well, should it become law.

“This is a waste of judicial time and resources, as well as taxpayer time and resources,” she said.

Regier said in response to a question from Rep. Andrea Olsen, D-Missoula, that he did not believe the effort was a waste of time and money.

He said it was an “important issue” and “one the courts need to take a look at again.”

Regier wrote in the comments on the legal review that he believed it was the Supreme Court, and not the Constitution, that created the requirements at issue.

He said the crux of his argument was that courts have “made wrong decisions in the past” and that he wants courts to look at the word “individual” in the Constitution. He said he believes fetuses are separate individuals than the person who would be getting an abortion after consultation with their health care provider.

“Our right to privacy should not apply to abortion any more than our right to privacy applying to child abuse or abusing a spouse,” he said. “Those acts include another person.”

Another proponent of the bill, Kaitlyn Ruch, said she believed the judicial branch has no authority to regulate abortion — something she said lies with the legislature.

But opponents strongly disagreed, saying the legislature did not have the authority to interpret the Constitution. Several discussed possible ramifications about it trying to do so.

Some Democrats on the committee stepped in at times to say they felt Sen. Barry Usher, R-Billings, who led the committee, was cutting off opponents he felt were off the main topic of the bill – privacy – but not proponents who also strayed into facets of the abortion conversation nationally.

“I would ask that we allow the opponents to make their full statements,” said Sen. Jen Gross, D-Billings. “This bill is two sentences long. The word ‘abortion’ is in the bill twice in those two sentences. Government funding of abortion is in the bill in those two sentences, and I think the opponents are on the bill, and I would appreciate if we could allow them to speak.”

Usher sparred with Meloy multiple times, telling him he was not staying on the bill’s topic.

“This is very much whether you have the authority to do this, and the reason for that is what’s going to happen if you pass this bill is the same Montana taxpayers of this state will incur significant attorney’s fees to defend it,” Meloy said.

Several opponents also noted that they felt the measure goes against the overall will of the majority of Montanans. 

“Montanans value their privacy, their independence and their freedom from government interference,” said Polson attorney Rachel Wandersheid. “This bill would do all of that and waste our time – again – and our money.”

The state has spent more than $100,000 defending challenges to 2021 laws passed by the Republican-held legislature.

Martha Fuller, the president of Planned Parenthood Advocates of Montana, noted that Legislative Referendum 131 – the so-called “Born Alive” Act, which was also referred by lawmakers – failed in November by more than 20,000 votes.

“SB154 is an attack on Montana’s right to privacy. It goes against what the vast majority of Montanans want,” said Aileen Gleizer, with the Susan Wicklund Fund.

Proponents of the bill argued that changes in technology since Roe and Armstrong were decided meant it was time for the courts to revisit their decisions – and pointed to the Dobbs decision as an example. Republican Gov. Greg Gianforte called for the court to review the decision in August.

“In light of Dobbs, Armstrong is a mess,” Laszloffy said. “And asking the court to go back and re-review Armstrong in light of Dobbs … I think, is appropriate.”

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.