Shoot the Messenger: Montana Supreme Court Preserves the Right to Privacy and Abortion

On May 12, the Montana Supreme Court (MSCT) handed down its unanimous decision in Weems v. State, 2023 MT 82. After reviewing the District Court record and that court’s decision, the MSCT held that 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.

Specifically, the MSCT ruled that the District Court correctly determined that § 50-20-109(1)(a) (2005), MCA, was unconstitutional in restricting Advanced Practice Registered Nurses (APRNs) from performing abortion services.

The MSCT’s decision is worth reading; you can pull up the opinion at the MSCT’s website:  and in the search box input the case number:  DA 22-0207.

Not surprisingly, a spokesman for the Montana Department of Justice was quoted by KLXH, news/ Montana as saying:

The state Supreme Court has become disgracefully radicalized and out of touch with Montanans.  . . . This case was not about the right to abortion – it was about whether women have a right to an elevated standard of care during an abortion. The Montana Supreme Court said ‘no’ and lowered the standard of care set by the Legislature, effectively constitutionalizing the right of unqualified individuals to perform unregulated abortions. This decision is a loss for Montana women who will be less safe because of the state Supreme Court.

Actually, nothing could be further from the truth.  Rather, the DOJ’s response was predictably typical of Attorney General Knudsen’s office—and no doubt, in due course the legislature and governor’s office, as well.  That is: misrepresent the message and shoot the messenger.

But don’t take my word for it.  Read the opinion.  If you do you will learn at paragraph 46 of the opinion that:

The record [from the District Court] is devoid of any evidence that APRNs providing abortion care present a medically acknowledged, bona fide health risk to Montana women. The State’s argument is detached from the overwhelming evidence presented to the District Court that abortion care is one of the safest forms of medical care in this country and the world, and that APRNs are qualified providers. The State’s reasoning rests on a faulty foundation.

 To sum up, what the MSCT is saying is that the State—that would be General Knudsen’s office—did not meet its burden to prove that the statute cited above was constitutional. Indeed, the MSCT stated at paragraph 51 of its opinion that:

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. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care.

So, the MSCT’s opinion in Weems was not because a “radicalized” court, “out of touch with Montanans” rendered a legally incorrect decision.

Quite the opposite, the MSCT handed down exactly the decision that the District Court evidentiary record (or lack thereof on the part of the State) and Montana precedent required.  The MSCT and District Court fairly, independently and impartially followed the law.

The lesson here is this.  In the coming weeks, months and probably years, many of the acts passed by the 2021 and 2023 sessions of the legislature and signed into law by the governor will be challenged in Montana’s courts.  These are laws that impact the rights of every Montanan—rights to individual privacy, to a clean and healthful environment, to know, to vote, to human dignity, to parent, to a quality public education, just to name a few.  And, I expect that many of those laws will be successfully challenged.

But keep in mind, it won’t be a “radicalized” court system that overturns these laws.  It will be because such laws were enacted by the political branches of government knowing full well that these laws would likely be ruled unconstitutional, were enacted in spite of the Constitution, not in accordance with it, and were enacted on the basis of a radical extremist partisan ideology dictated by national organizations that value and promote authoritarianism over democracy and the rule of law.

Keep that in mind when the States’ excuse for losing a losing case is a strident shoot the messenger.

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