Montana’s pro-life push

Jeff Laszloffy, president of the Montana Family Foundation, stepped up behind the lectern set up in the rotunda of the Montana state Capitol in Helena. It was Jan. 14, and a few hundred people had gathered that day in rows of chairs or in balconies ahead of the state’s March for Life.

In a normal year, they would leave the rotunda and march around the Capitol. But this year, Laszloffy told the marchers, they would instead head to the state Supreme Court building. As pro-lifers around the country hope for a reversal of Roe v. Wade at the U.S. Supreme Court, the Montana marchers aimed to make a statement to their own justices.

Across multiple states, pro-life advocates are working to prepare for a potential post-Roe future, a possibility if the U.S. Supreme Court rules in favor of Mississippi’s pro-life law in its decision in Dobbs v. Jackson Women’s Health Organization, expected this summer. But in Montana, all eyes are on the state Supreme Court. Although the state has a pro-life Legislature—and, for the first time since the early 2000s, a Republican governor—a judicial system dominated by pro-abortion judges and a 1999 Montana Supreme Court decision that interpreted the state constitution as establishing a right to abortion have held up legislation protecting unborn babies and pregnant women. Last month, the state attorney general petitioned the court to overturn the 1999 decision and allow three pro-life laws passed in 2021 to take effect as intended. Pro-lifers see that as an important step toward establishing Montana as an abortion-free state if the U.S. Supreme Court overturns Roe.

“We know that if we win Dobbs and Roe v. Wade is overturned, then it kicks the issue back to the states, and that means that Montana is going to have to come up with a mechanism to be able to outlaw abortion in the state that actually sticks,” said Laszloffy after the march. “We went over to the [state] court … to put the court on notice: We understand that Dobbs could go our way.”

In the 1999 Armstrong v. State case, several doctors, physician assistants, and a Montana abortion facility sued the state over a law that prohibited physician assistants from performing abortions. They claimed the law violated the right to privacy granted to citizens in the Montana Constitution. The state Supreme Court in its October 1999 ruling agreed.

During the Armstrong case, Laszloffy was a candidate for the Montana House of Representatives and won his election about the time the decision came down. He said Armstrong has haunted his pro-life efforts ever since, even after he left the House and began working at the Montana Family Foundation about 20 years ago. “Armstrong is always the hinge point that gets our legislation defeated,” he said.

Based on Armstrong, Planned Parenthood of Montana argued in a 2021 lawsuit that three pro-life laws signed by Gov. Greg Gianforte last spring were unconstitutional. One law would have protected unborn babies from abortions after 20 weeks of gestation. The others would have required abortionists to give a woman the opportunity to see an ultrasound of her baby and to distribute the abortion pill in person, rather than through the mail, after an examination and testing. In October, a state district court judge blocked enforcement of the laws while the legal challenge continues. The Montana Attorney General’s Office appealed that case to the state Supreme Court last month.

“Roe, as awful as it was, actually was probably more of a modest opinion than Armstrong,” said Montana Solicitor General David Dewhirst. He pointed out that, as in Roe, the justices who wrote the Armstrong opinion read a right to abortion into the privacy clause of the state constitution, which simply says, “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.”

Even worse, Dewhirst added, the justices in Armstrong also dismissed the Montana Legislature’s pro-life laws as an attempt to impose a standard of morality upon citizens. The opinion calls the pro-life law an example of the Legislature interfering in matters of individual privacy “under the guise of protecting the patient’s health” because of a “prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values.”

But Dewhirst’s brief points out that the framers of the Montana Constitution, when they convened for the 1972 constitutional convention, intentionally left the question of abortion’s legality up to the Legislature. Abortion was a criminal offense in Montana at that time, and even though Roe v. Wade was underway in the federal courts, the Montana Bill of Rights Committee agreed that abortion “is a legislative matter insofar as we are concerned.”

“They did put a right to privacy into the constitution,” said Laszloffy. “But that was contemporaneous to the Watergate incident that happened. And so all of the discussions surrounding Montana’s right to privacy in the constitution focused on electronic eavesdropping and government overreach.”

Laszloffy said it was unlikely the current, liberal-leaning state Supreme Court would overturn Armstrong. It’s a similar problem in the lower courts: A case involving a pro-life parental notification law has stalled for almost a decade as pro-abortion judges have repeatedly punted it.

He’s hopeful that will change. Montana now has a pro-life executive branch along with pro-life majorities in the Legislature and among voters. In Montana, voters elect judges, and how judges react to abortion cases could affect whether or not they get reelected.

“No longer does the court have the executive branch as its firewall, and they’re going to have to make some tough decisions,” Laszloffy said. “We will use decisions that are rendered by judges across the state … in our efforts to get pro-life judges elected in the next election cycle.”