The Montana Supreme Court should overturn its 1999 landmark decision that found the state constitution’s right to privacy protects access to abortion, the Montana Department of Justice argues in new court filings.
The justice department has appealed to the high court a Yellowstone County District Court judge’s preliminary injunction halting several new laws restricting abortion from taking effect. On Wednesday, Attorney General Austin Knudsen filed the department’s opening brief, which among its arguments calls for overturning the 1999 case Armstrong v. State and accuses Supreme Court justices at the time of “judicial activism.”
“Armstrong’s reasoning is a deeply flawed tribute to unrestrained judicial activism,” the filing states. “Nowhere in Montana’s constitutional text is there a right to elective abortion. Instead, the framers intentionally excluded abortion from the Constitution and left to the Legislature the prerogative to permit, prohibit, or regulate it.”
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Last year Planned Parenthood of Montana requested a preliminary injunction for a trio of new abortion laws passed by GOP lawmakers and signed by new Gov. Greg Gianforte. The laws being challenged would ban abortions after 20 weeks gestational age; require a woman to be informed of the option to view an ultrasound before an abortion; and require informed consent before a drug-induced abortion and block providing the medication through the mail.
A fourth law prohibiting health insurance plans sold on the federal exchange from covering abortion, was not part of the preliminary injunction request.
Judge Gregory Todd who was initially assigned the case voluntarily stepped down after lawyers for the attorney general, who is defending the case on behalf of the state, sought to have him removed by the Supreme Court following the judge’s comments over an unrelated dispute between the Legislature and the judiciary.
Judge Michael Moses, who assumed the case, issued the preliminary injunction in October, writing "(Planned Parenthood) and their patients will be irreparably harmed through the loss of their constitutional rights, thus the prevention of the status quo is necessary to prevent that harm.”
Moses further ruled that the law banning abortions after 20 weeks gestational age was likely unconstitutional. The judge citied the Armstrong case in finding that “abortion is legal in Montana until viability,” and that both the state and Planned Parenthood stated that viability occurs after 20 weeks – the state argues 20 weeks falls within the margin of error for its definition of viability.
The Armstrong case stemmed from a challenge to a state law that only allowed physicians to perform abortions. The unanimous decision cited the provision of the Montana Constitution cementing Montana’s privacy rights, which go further than the U.S. Constitution, in finding that those rights included the right to an abortion before viability.
Knudsen filed a notice of appeal to the Montana Supreme Court challenging Moses’ preliminary injunction in October and filed the opening brief on Wednesday. The 62-page brief asks the high court to overrule the injunction, which would allow the laws to go into effect while legal proceedings play out, saying the laws “promote the health and safety of pregnant women who are seeking abortion.”
“All three laws unquestionably enhance the health and safety of Montana women. And they represent basic regulations of the practice of medicine —bread-and-butter exercises of the state police power,” the filing states.
The filing argues the District Court judge misapplied the legal standard for a preliminary injunction, ignored evidence brought by the state and wrongly reviewed all three laws under a standard of “strict scrutiny,” meaning the law must be of compelling public interest and narrowly tailored to meet that interest.
But the brief spends significant time asserting that the Armstrong decision was fundamentally flawed and should be overturned.
“The right (to an abortion) is entirely judge-made, arising from the sociological convictions of seven justices,” the filing states. “Armstrong was manifestly wrong the day it was decided. Now, it falls to seven different justices to reaffirm a juridical first principle: courts declare what the law is, not what judges think it should be. This Court should overrule Armstrong.”
Planned Parenthood has not yet filed a response to the justice department. Following the District Court’s injunction, President and CEO Martha Stahl issued a statement applauding the decision and saying anti-abortion lawmakers sought to “undermine access to basic health care.”
“This is an important and hard-fought victory. We’re thrilled that the Montana district court preliminarily blocked these unconstitutional laws, protecting Montanans’ access to safe, legal abortion," she said.
Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.
