The Power of Privacy: the Future of Roe in Montana

Photograph by Nathaniel St. Clair

Texas’ new anti-abortion law is one of the most restrictive in the developed world.[1] But no surprise that the brouhaha over women’s right to abortion services has nothing to do with honoring their personal autonomy and little to do with fetal mortality. Rather, the fight is grounded in partisan politics.

Historian Heather Cox Richardson provides the background:[2] Abortion has been a part of American history since its inception. States began to criminalize it the 1870s, with the result that by the 1960s there were hundreds of thousands of illegal abortions a year endangering women. Based on sound medical practice, states began to de-criminalize pregnancy terminations, leaving the matter to the woman and her doctor.  By 1972, (the year Roe v. Wade was handed down) 64% of Americans (59% of Democrats and 68% of Republicans) agreed with this medical model.

The politicization of the medical model began before Roe, however.  In 1972, Richard Nixon was up for re-election and he and his advisors were paranoid about his chances of winning—fearful that Democrats and traditional Republicans would take power. Nixon formerly had no problem with the medical model (he directed military hospitals to perform abortions regardless of state law). However, in 1971, seeking to woo Catholic/Democrat and Evangelical voters and split the party’s votes, Nixon reversed course and adopted the Catholic “sanctity of human life” doctrine.   Ronald Reagan followed suit.

The rest is history. Abortion turned from being a medical issue and became, instead, a political one–not a fight about persons or personhood, but, rather, an ideological struggle for partisan power driven by males.

This, too, was the state of affairs in Montana when health-care providers sued seeking a determination that Montana’s anti-abortion laws violated women’s constitutional right to abortion services.

It is a well-settled principle of constitutional law that, while a state may not provide less protection of a federal constitutional right, it may provide greater protection under its own constitution.  Roe v. Wade was grounded in the federal constitutional right to equal protection and due process of law.

However, in Armstrong v. State, 1999 MT 261,[3] the Montana Supreme Court turned to Montana’s Constitution instead of to the Federal Constitution.  Montanans are guaranteed the fundamental right of individual privacy under Article II, Section 10 of our State Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Fundamental constitutional rights are the most stringently protected rights in our Constitution.  Legislation infringing such a right is reviewed under strict-scrutiny analysis, meaning that the legislation must be justified by a compelling state interest and must be narrowly tailored to effectuate only that compelling interest.

With this standard in mind, the Court carefully considered the history of the right of individual privacy and determined this right guaranteed that a woman was entitled to make medical judgments affecting her bodily integrity and health—including obtaining a pre-viability abortion–in partnership with her chosen health care provider free from government interference.

Importantly, Armstrong was grounded independently and solely in the right of privacy and other fundamental rights protected in Montana’s Constitution and not in federal constitutional law. In short, Montana provides greater protection for women’s right of procreative autonomy—the right to choose—than does the federal Constitution.

Thus, regardless of what happens to Roe, Montana women will continue to be guaranteed their constitutional privacy right to seek abortion services based on the medical model, free from male-driven partisan and religious meddling.

For Montana women privacy–not politics–is power.

Notes.

[1] https://www.cnn.com/2021/09/03/world/how-texas-abortion-law-compares-to-world-intl-cmd/index.html

[2] See, How the South Won the Civil War, Heather Cox Richardson, Oxford University Press, 2020, pp. 174-75, 177, 181-182.

[3] Read the opinion at: https://caselaw.findlaw.com/mt-supreme-court/1489482.html

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.

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