Bill that says constitutional right to privacy does not cover abortion headed to governor

Bishop: ‘You’re going to use it to turn around again and say the courts have somehow failed the people.’

By: - April 13, 2023 6:17 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)

A bill that aims to put language into Montana law saying the right to individual privacy under the state constitution does not create a right to abortion is headed to Gov. Greg Gianforte’s desk despite questions over its constitutionality.

The House on Thursday voted 67-33 – with Rep. Casey Knudsen, R-Malta, joining all Democrats against the measure – to pass Senate Bill 154, sponsored by Sen. Keith Regier, R-Kalispell, on third reading.

A legal review note says the bill flies in the face of the Montana Constitution’s right to privacy, which the state Supreme Court in the 1999 Armstrong v. State decision found also meant women have the right to abortion unless the state demonstrates a compelling interest against that right.

Regier previously argued, and wrote in a rebuttal to the legal note, that it was the state’s Supreme Court which decided that abortion was covered under the right to privacy, and not the constitution.

Rep. Lola Sheldon-Galloway, R-Great Falls, carried the bill in the House for its second reading on Wednesday, and made similar arguments made by Regier and other proponents during the bill’s committee and Senate floor hearings.

She said that abortion is not an “individual act” because it involves the fetus’ DNA and that privacy rights should not apply to abortion “any more than the right to privacy should apply to child abuse or spousal abuse.”

Sheldon-Galloway also argued that perhaps the Montana Supreme Court made the wrong decision in Armstrong, saying that courts had also made the “wrong decision” in Dred Scott, a 1927 eugenics case and Roe vs. Wade.

“I believe we need to also recognize that we have three branches of government. The legislature represents the people and we make the law. The judiciary is to follow that law,” she said in her closing remarks.

Rep. Laurie Bishop, D-Livingston, spoke vehemently against the bill, saying the legislature was trying to reinterpret or discard court decisions by passing Regier’s bill.

“The courts have made it very clear the provision of the state constitution does apply to abortion, and there isn’t a law we can pass that changes that,” she said. “I think we all know that when this is done, this bill is going straight to the courts.”

Bishop said the bill’s premise was that lawmakers could step in and say that courts got decisions wrong and the legislative majority’s interpretation was actually the correct one.

She said she was frustrated that as Republican lawmakers have talked at length about their own irritation with Montana courts blocking their bills from taking effect, as has been the case multiple times during the past two years, SB154 would likely be yet another bill headed to court despite lawmakers being told it had constitutional conformity issues.

Planned Parenthood has already sued to challenge a bill targeting abortion that is awaiting the Republican governor’s signature, and lawmakers have appropriated $2 million in the state budget for the state to defend against bills passed by the Republican supermajority and signed by Gianforte.

Bishop said Tuesday that sending the bill to the governor for his signature amounted to lawmakers giving up their own authority to say they understand the separation of powers between the legislative, judicial and executive branches.

“All you’re doing is sending forth an idea, and then you’re going to use it to turn around again and say the courts have somehow failed the people,” she said. “You’re failing when you don’t take the vote that’s the hard vote here. I hope that you’ll take it today.”

The House voted 67-33 on both second and third readings to pass the bill, with Knudsen the lone Republican vote against it each time. Since the bill was not amended in a House committee or on the House floor after passing the Senate 28-21, with six Republicans in opposition, it now heads to Gianforte’s desk.

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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.