Montana’s Republican lawmakers hold a supermajority, granting them the authority to seek voter approval for a constitutional amendment that aims to separate abortion rights from the right to privacy in the state’s Constitution.
However, lawmakers have not yet made an effort to request voters to approve the change, which would enable them to prohibit or impose additional limitations on abortion following the U.S. Supreme Court’s decision to return that authority to the states last year.
Montana serves as an illustration of the prolonged abortion policy conflict that is anticipated to persist in certain Republican-controlled states, as 14 states have already implemented nearly comprehensive abortion restrictions post the overturning of Roe v. Wade last year.
“This takes time,” said Montana House Speaker Rep. Matt Regier, R-Kalispell. “It took years to overturn the wrong decision of Roe v. Wade.”
Montana is one of 11 states — most recently joined by South Carolina — where courts have ruled that abortion access is a constitutional right, and legal battles to dismiss or entrench those rights are picking up. In Florida, reproductive health providers are challenging a 15-week total ban on abortion in the state Supreme Court, citing its long-standing interpretation that the state’s right to privacy extends to abortion. Legislation is pending over what standards Iowa will adopt after the state Supreme Court reversed its 2018 decision that due process and equal protections secured abortion access.
Meanwhile, in January, Minnesota — which already had a court ruling that abortion is a constitutional right — built that protection into state law and expanded the right to reproductive health care. The same month, the South Carolina Supreme Court struck down a ban on abortions after six weeks, joining states that defined abortion as a right. There, abortion opponents and advocates alike expect more attempts by the Republican-controlled legislature to whittle away access.
In Montana, Republican Gov. Greg Gianforte’s administration wants to reverse a 1999 state Supreme Court ruling that said the state’s constitutional right to privacy extends to abortions. Republicans could bypass the courts and go straight to the state’s voters to make that change without the support of Democratic legislators. That’s after Republican lawmakers clinched a supermajority — two-thirds of the legislative seats, allowing the GOP to overturn vetoes and forward constitutional amendments to the ballot.
Republican lawmakers have introduced at least four constitutional amendment bills so far in the legislative session that began in January, but none has dealt with abortion. That may be due to uncertainty over how Montanans and even Republican lawmakers would react to such a proposal after voters in other states sided with abortion rights advocates on ballot issues in last year’s elections.
Kansas and Kentucky voters rejected constitutional amendments that would have declared there is no right to an abortion. Michigan, Vermont, and California voters codified abortion rights in their constitutions. And Montana voters rejected a “born-alive” initiative that would have created criminal penalties for health workers who do not attempt to save the life of a baby, embryo, or fetus after a botched abortion or other birth.
Jessi Bennion, a political scientist who teaches at Montana State University and Carroll College, said Republicans, unsure of where voters stand, are likely hesitant to strike at the state Constitution.
According to Bennion, Republicans are currently in the process of testing the waters to gauge their political standing. The midterm elections have caused significant concern and unease among many Republicans.
There are also signs of division within the party’s ranks. The state Senate recently debated a bill that would add to state law a declaration that the right to privacy does not extend to abortion. The bill passed the Senate 28-21, and is now being considered in the House, but six of the 34 Senate Republicans voted against it.
In Montana, Republicans currently occupy 102 out of 150 state legislative seats. While they have the ability to pass laws with a simple majority, they require a 100-member supermajority to present a proposed constitutional amendment for voting. The Democratic party in the state has been resistant towards introducing new abortion restrictions, which puts Republicans in a precarious position. They cannot afford significant dissent within their own ranks if they decide to propose a referendum.
Some Republicans who voted against the bill said the issue to them wasn’t abortion, but the potential encroachment on medical privacy. Sen. Bruce Gillespie, R-Ethridge, has supported bills in past legislative sessions that would limit how far into a pregnancy someone can have an abortion, but he said he couldn’t vote for the recent bill.
Gillespie commented, “While I don’t personally support abortion, I also don’t believe in imposing my views on others and infringing upon their rights.”
Sen. Jeff Welborn, R-Dillon, another “no” vote, said he heard from people who, like him, believe there is a time and place for abortions. “There are more people that think like me that don’t necessarily have the courage to vote exactly like me,” Welborn said.
According to Kyle Schmauch, a Senate GOP spokesperson, it is important to acknowledge that it is still early in the session and a constitutional amendment has not been disregarded as an option. However, the extent to which people desire restrictions remains uncertain.
According to Schmauch, Montanans generally support implementing certain restrictions on abortion, although there is uncertainty regarding the specific opinions of voters on various regulations.
Democratic lawmakers have introduced reproductive health bills to expand access to care, such as requiring insurers to cover a year’s supply of birth control, in what they call an effort to find common ground. They also have a draft bill to codify the right to abortion in state law, but as the minority party, the odds are against the proposal advancing far.
“We’re expecting to play defense hard and to watch Republicans try to take away Montanans’ right to make their own decisions about their body,” said Rep. Alice Buckley, D- Bozeman.
