Montana Supreme Court Blocks Draconian GOP Abortion Ban


The state Supreme Court in Montana chose in recent days to preserve a block on the implementation of three GOP-backed abortion laws in the state as legal challenges over the regulations further unfold.

The laws were passed and the underlying legal challenge was launched before the U.S. Supreme Court chose to overturn Roe v. Wade, letting state officials hold dramatically more leeway in restricting abortion according to their political ambitions. The case over these three Montana laws was also fully briefed before the Montana Supreme Court before Roe was overturned. The state’s highest court, however, didn’t decide on the merits of the underlying arguments — just the preliminary injunction matter. The court’s participating members indicated that a determination of the merits of the original case wasn’t appropriate for the Justices to make at this stage of the proceedings.

In seeking action by the state Supreme Court, Montana leadership sought the undoing of a lower-level judge’s injunction against the laws’ implementation and the overturning of a 1999 state Supreme Court decision on which that judge relied. That 1999 decision outlined, as summarized by the Associated Press, that laws “interfering with bodily autonomy” were in violation of individuals’ rights to privacy established by the state Constitution in Montana. As the Associated Press summarizes the Montana Supreme Court’s conclusions, the “purpose of a preliminary injunction is to maintain the status quo pending trial, not to rule on the merits of the entire case.”

As the Associated Press explains, the three measures under dispute include one outlawing abortions after 20 weeks of pregnancy, another disallowing the usage of tele-health services for medication abortions, and a measure requiring abortion providers present a chance to hear the fetal heart tone or see a fetal ultrasound 24 hours prior to an abortion. The next step in the case is a full trial dealing with each side’s arguments. Emilee Cantrell, a spokesperson for the Montana Department of Justice, argued against the state’s preliminary injunction standards after the state Supreme Court decision. “The current standard for preliminary injunctions is so low that it’s not really a standard at all,” she said. “As a result, constitutional laws like these may be blocked for months – or even years – before courts ever decide cases on the merits.”

One of the issues here is that it’s not a given the courts will decide these laws are constitutional, so Montana leadership wants the chance to enforce these laws even if they’re later found unconstitutional. Although state officials in locales such as Montana used the opportunity provided by the U.S. Supreme Court overturning Roe to push or keep pushing new restrictions on abortion, other states are pursuing new protections for reproductive healthcare services. In California and New York, for instance, amendments to the state Constitutions that would enshrine abortion rights in those documents are currently moving through the processes required for ratification. Massachusetts Republican Governor Charlie Baker, a rare pro-choice GOP’er, is among the governors and state leaders protecting abortion.