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‘Right to be let alone’: Montana Supreme Court unanimously extends abortion rights against latest GOP efforts, rejects ‘excessive governmental interference’ in women’s lives

Montana Gov. Greg Gianforte smiles as he rolls back abortion rights

Montana Gov. Greg Gianforte speaks at a bill signing ceremony on the steps of the State Capitol on Wednesday, May 3, 2023, in Helena, Mont. The state’s Republican-controlled Legislature passed several bills related to abortion access, and Gianforte signed five of them Wednesday, including one that will likely lead the state Supreme Court to reconsider its nearly 25-year-old decision that supports the right to a pre-viability abortion by a provider of the patient’s choice. The Montana Supreme Court used that ruling Friday, May 12, 2023, in saying advanced practice registered nurses could continue providing abortions in Montana. (Thom Bridge/Independent Record via AP, File)

The Montana Supreme Court unanimously extended abortion protections in the state on Friday – amid an ongoing effort by the GOP governor and legislators to erode women’s medical rights.

In a 7-0 decision, the Treasure State’s highest court sided with an advanced practice nurse practitioner and a clinician who challenged a 2005 law that restricted who could provide abortion services.

“[U]nder Montana’s Constitution, the right of individual privacy—that is, the right of personal autonomy or the right to be let alone—is fundamental,” the court noted, citing precedent. “It is, perhaps, one of the most important rights guaranteed to the citizens of this State, and its separate textual protection in our Constitution reflects Montanans’ historical abhorrence and distrust of excessive governmental interference in their personal lives.”

Earlier, a district court invalidated that same law, “Control of Practice of Abortion,” which restricts providers of abortion care to physicians and physician assistants, saying that the legislature violated a woman’s “fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing” when enacting it.

The lower court was correct, Justice Laurie McKinnon wrote:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk

“Accordingly, [the statute] is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice,” McKinnon explained, upholding the lower court’s summary judgment ruling for the plaintiffs in the case.

The law previously made it a felony for anyone other than a physician or physician assistant to perform an abortion.

Attorney Alex Rate, the legal director for the ACLU of Montana, represented the plaintiffs who successfully challenged the law.

“The court is expanding access to reproductive health care, which is particularly important in a time when we are seeing our neighboring states restricting abortion care across the board,” the civil libertarian advocate said in comments reported by Montana Public Radio.

Earlier this month, the Montana legislature passed – and Gov. Greg Gianforte signed – a series of laws to roll back women’s abortion rights  – including an effort to further strengthen the law just found unconstitutional by limiting abortions to physicians alone. That law would likely be considered a dead letter.

Republicans also passed a bill that aims to undo the precedent, the 1999 Armstrong case,  on which the state’s highest court relied in deciding the latest case, stylized as Weems v. Montana.

That law will also likely be overturned if and when the court takes up the matter.

“Independently of the federal constitution, when the right of individual privacy is implicated, Montana’s Constitution affords significantly broader protection than the federal constitution,” McKinnon wrote in Friday’s opinion. “The delegates to Montana’s 1972 Constitutional Convention viewed the textual inclusion of this right in Montana’s new constitution as being necessary for the protection of the individual in ‘an increasingly complex society . . . [in which] our area of privacy has decreased, decreased, and decreased.’ Delegate Campbell proclaimed that the ‘right to be let alone’ is ‘the most important right of them all.'”

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