Last Tuesday (January 17th), I testified in support of legislation proposed in Montana that would ensure that the right of privacy under Montana law “does not create, and may not be construed as creating or recognizing, a right to abortion or governmental funding of abortion.” I urged the Senate Judiciary Committee to support Senate Bill No. 154, “An Act Defining the Right to Individual Privacy; Clarifying the Right of Privacy Does Not Include the Right to Abortion”. I argued that the bill correctly recognized that abortion is uniquely different from privacy rights. Although the U.S. Supreme Court has constitutionally protected privacy rights under the Fourteenth Amendment, including marriage, contraception, and child rearing, Dobbs v. Jackson Women’s Health Organization acknowledged that abortion is intrinsically different because it involves the life of an unborn human being. If the bill passes, the legislature will be making an important distinction between abortion and legally protected privacy rights, which will prevent the state judiciary from conflating the two interests like the Supreme Court erroneously did in Roe v. Wade.

Bill Consistent with Legal Tradition

Further, I pointed out, the bill is consistent with the American legal tradition on abortion before Roe distorted it beyond recognition. As the Supreme Court explained in Dobbs, nothing in the American or English legal tradition protects abortion as a fundamental right. Rather, these traditions have criminalized abortion. When the United States adopted the Fourteenth Amendment, the majority of states had statutes criminalizing abortion at all gestational ages. Accordingly, the Supreme Court in Dobbs overturned Roe and held that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

With the overturning of Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, state constitutional law cases creating a Roe-like “right to abortion” have been called into question, including the Montana Supreme Court’s decision in Armstrong v. State. Armstrong relied on Roe to contrive a right to abortion in the state constitution, which contradicts the American legal tradition on abortion. Yet now that Roe is gone, Armstrong rests on precarious legal grounds for its justification. This bill would correct the record by acknowledging that there is no state constitutional right to abortion implied in Montana’s right to privacy. Thus, this bill is consistent with the country’s legal tradition on abortion.

Protecting Montanans Against Taxpayer Funding of Abortions

Lastly, I argued that the bill is important because it protects Montanans against taxpayer funding of abortions. Restrictions on abortion funding are an important safeguard for taxpayers’ conscience rights, especially when the majority of Americans oppose taxpayer funding of abortions. In this bill, the legislature acknowledges that public policy does not support governmental funding of abortion. As a result, this bill acts as a taxpayer conscience protection bill.

Montana’s bill highlights the importance of states revisiting constitutional decisions that relied on Roe and Casey. Since Roe and Casey were decided, abortionists have filed a flurry of lawsuits in state courts to concoct constitutional abortion “rights.” In Armstrong v. State, Montana used the Supreme Court’s faulty reasoning in Roe and Casey to create a right to abortion in the state constitution. Yet, the Supreme Court overruled Roe and Casey in Dobbs and recognized the federal Constitution does not protect abortion as a purported fundamental right. Now, states have the opportunity to challenge abortion cases that relied on overruled precedent and clarify that the right to abortion is not protected under the state constitution. As an example, in Planned Parenthood of Southwest and Central Florida, et al. v. State of Florida, et al., the state has challenged a previous decision that devised a state constitutional right to abortion. The state argues that because the Florida Supreme Court had relied upon Roe, and the Supreme Court has overturned Roe, the purported abortion right is no longer is justified. Similarly, prior to the official release of the Dobbs opinion, the Iowa Supreme Court reversed its previous ruling in Planned Parenthood of Heartland, Inc. v. Reynolds, which erroneously held that the state constitution protects abortion as a fundamental right.

Now that Dobbs has returned the abortion issue to the People and the democratic process, states should continue to challenge poorly reasoned cases like Armstrong that relied on Roe and Casey to create abortion rights in state constitutions.

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