The Best Defense . . .

Photograph by Nathaniel St. Clair

The storm clouds are gathering; readying a downpour of attacks on women’s right to reproductive self-determination.

Prime time, and obviously well-funded, television ads have, for months, been proclaiming the value and humanness of children of all ages, whether “planned” or not.  Viewers are being assaulted with barely-understandable, baby-talking fetuses saying the same thing—”I wasn’t planned, but I am human and I have value.”  Billboards are sending the same message.

Sadly, missing from these gimmicky TV spots is the self-evident truth that women who become pregnant—whether they plan to or not—are also human and have value. Women are not simply baby-makers whose reproductive functions need to be controlled by patriarchal politicians and self-appointed religious busy bodies. Importantly, pregnant women have the constitutional right to determine for themselves whether or not to bear a child.

Sappy television commercials and billboards aside, however, the real threat to women’s right of choice will be in the form of a super-majority of the legislature calling for a constitutional convention to amend out of our Constitution Montanans’ rights of individual privacy, to human dignity, equal protection, due process, to seek safety, health and happiness, and to refuse to ascribe to any religion or sectarian belief.

These are the fundamental, state constitutional rights grounding the Montana Supreme Court’s 1999 decision in Armstrong v. State.  This decision guarantees women’s right to seek and obtain abortion services, free of government interference—and, importantly, despite the United States Supreme Court’s recent decision overturning Roe v. Wade.

At the very least, we can expect the next legislature to propose a referendum to amend the Constitution specifically prohibiting contraception and abortion services of any kind and, probably, without any safety net for pregnancies resulting from rape or incest.  Think Texas’ draconian anti-abortion statutes which criminalize abortion providers and rely on vigilantes to sue those who seek abortion services and those who support them.

For these reasons voters should vote for pro-choice candidates and, obviously, reject any calls for a constitutional convention or referenda to amend the Constitution with proposals aimed at destroying the fundamental rights previously mentioned.  Women’s right of reproductive self-determination must not fall into the hands of partisan politicians and religious zealots.

That said, there is another thing that women and men who support reproductive choice should do.

Montanan’s have a constitutional right to place on the ballot a citizens’ initiative to amend the Constitution to guarantee women’s right of reproductive autonomy.

Such a provision might well read as follows:

Reproductive Autonomy

1) An individual’s right to reproductive autonomy, which, without limitation, includes the right to have an abortion and to use contraception, is a fundamental right, central to liberty, to human dignity to determine one’s own course of life and to individual privacy to make the most personal of intimate decisions.

2) Neither this right, nor the exercise thereof, shall in any manner be restricted or punished by any governmental civil or criminal authority or by any branch of government, absent clear and convincing evidence demonstrating a compelling state interest achieved by the most least restrictive means.

There is no good reason why those supporting women’s right to choose, must simply sit back and wait for the axe to fall on that constitutional guarantee.

Indeed, there is every reason why those individuals, institutions and organizations that support the right of reproductive autonomy should not respond to the war on women with a well-funded, full-frontal attack of their own.

The 2023 election is looming; now is the time to fight like hell!

The best defense, is a good offense.

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