Elinor Smith

HELENA (UM Legislative News Service) – When the U.S. Supreme Court overturned Roe v. Wade last year, it put abortion in the state on the line during the 2023 Montana Legislature.

Now, lawmakers will soon have their final debates on three bills that would limit access to abortion in three main ways: by limiting Medicaid payments for abortions, by criminalizing abortion except in the case of medical necessity and by excluding abortion from Montanans’ right to privacy as it’s protected in the Montana constitution. 

House Bill 544

The first way abortion access could be limited in the state is through Medicaid, the state’s insurance program for low-income Montanans. House Bill 544 is sponsored by Rep. Jane Gillette, R-Bozeman and it would prohibit the state Medicaid program from paying for an abortion unless the procedure is medically necessary or the pregnancy is the result of rape or incest.

Those who seek an abortion to be covered by Medicaid would need to prove that the abortion is medically necessary with extensive medical documentation. 

The bill passed the House in mid-March on a 66-32 vote to move it to the Senate. The Senate Public Health, Welfare and Safety Committee heard testimony on the bill on Friday. The House Judiciary Committee was the first to hear the bill at a February hearing. Gillette said at the hearing that the majority of abortions paid for by the state are classified as medically necessary.

“Ninety-nine percent of the abortions that taxpayers fund are under this next category, which is considered medically necessary. So it's reasonable to expect that we're going to start to define medically necessary and sort out what's medically necessary from not,” Gillette said.

Opponents of the bill said HB 544 would disproportionately affect low-income Montanans who rely on Medicaid for their healthcare and can’t afford to pay for an abortion out of pocket. Leah Shea represented the Susan Wicklund fund, a non-profit dedicated to providing safe abortions to anyone in Montana who needs them regardless of if they can pay for it. 

“HB 544 would create significant hardship for Montanans who are already financially vulnerable. Abortion care is healthcare. It is legal and protected in Montana. It is unethical to make accessing a common and safe part of reproductive healthcare harder for Montanans with lower income than it is for their fellow Montanans,” Shea said. 

The cost of an abortion varies greatly depending on the type, how far along the pregnancy is and in what state the service is provided. According to Planned Parenthood, the costs can range from around $600 on the low end to $2,000 on the high end.

House Bill 575 

Criminalization is the second way abortion access could be limited in the state. House Bill 575 would make aborting a viable fetus, or a fetus that could survive outside of the womb, a felony. There is no exception for rape or incest listed in the bill. 

“The bill makes expressively clear that all viable unborn children are protected from abortion except when necessary to provide [for] the mother's life,” the bill’s sponsor, Lola Sheldon-Galloway, said at a hearing for the bill in the Senate Judiciary Committee on March 28.

Opponents of the bill said it could discourage doctors from offering the best care they can. 

“Physicians should be able to provide care without the fear of excessive penalties, including being charged with a crime. The practice of medicine is complex. Medical standards of care and the given medical circumstances should drive the care and not a fear of being charged with the crime,” Jean Branscum, the CEO of the Montana Medical Association told the Senate panel last week.

Similar penalties for doctors who provide abortions have already been enacted in Montana’s neighboring states like Idaho. The impact of those penalties was almost instant. According to reporting from the Associated Press, one hospital in Idaho has stopped delivering babies altogether, citing the high legal risk under the new abortion law. 

HB 575 passed the House of Representatives March on a vote of 68-31 before it moved to the Senate. The Senate committee did not take immediate action on the bill.

Senate Bill 154

The final way abortion access could be limited in the state has to do with the definition of privacy. Sen. Keith Regier, R-Kalispell, is the sponsor of Senate Bill 154, which would exclude abortion from Montanans’ constitutional right to privacy. Regier’s argument hangs on the word “individual.”

Currently, Montanans’ right to privacy is ensured so long as they are the only one affected by their choices. He says since an abortion affects not only the mother’s body but the fetus as well, it is not an individual act and therefore should not be included in Montanans’ right to privacy. 

“A right to privacy should not apply to an abortion anymore than a right to privacy applying to child abuse or abusing a spouse. Those acts include another person and are not acts of individual privacy,” Regier said.  

Opponents of the bill said that it’s unconstitutional and pointless because the right to an abortion is already included in the constitutional right to privacy under the 1999 Montana Supreme Court case Armstrong v. State. Anne Angus had an abortion and spoke out as an opponent of the bill in the House Judiciary committee Friday. She said the bill wasn’t warranted and didn’t fall in line with the standard of medical treatment in the state. 

“Every other aspect of my healthcare is protected by privacy rights. Every other decision I make with my provider is protected by privacy rights. There is no basis for abortion being any different here other than you've decided that you want it to be different,” Angus said. 

The bill passed the Senate in January on a vote of 28-21 and the House Judiciary Committee heard testimony on it on Friday but did not immediately vote on the bill.

The future of abortion in Montana will unfold in the next month as the legislative session comes to an end, but policy watchers say the stage is set for substantial change. Quinn Leighton is the director of external affairs for Planned Parenthood Montana and they said the organization is expecting that Gov. Greg Gianforte is likely to sign these bills. They said that could impact Motnanans’ ability to make choices about their own reproductive health -- especially low-income, BIPOC, rural or otherwise vulnerable Montanans.

“It really feels like they are attacking abortion care for lower income folks and folks who may rely on public assistance or Medicaid funding. And so, I think looking at low income folks and then folks who have just systemically and institutionally run into barriers to healthcare, so, you know, communities of color,  LGBTQ people, transgender people, I think are those who are going to potentially run into continued barriers,” Leighton said. 

They also said it’s likely that some of the bills will end up in Montana’s courts.

“The sad reality is that they're -- they're passing these knowing that it will be a waste of taxpayer time and money because they will be litigated later. Knowing, knowing that they're unconstitutional,” Leighton said.

The Montana Family Foundation, one of the leading non-profit groups lobbying for many of these measures, did not respond to a request for comment for this story by deadline. 

In his State of the State address on Jan. 25, Gianforte hailed the Legislature’s efforts to restrict abortion and promised his administration would continue to fight for anti-abortion legislation. 

“Last session, we passed common-sense pro-life bills, some of which are now tied up in the courts. But our commitment to doing what's right for unborn babies will never waiver. As we stand firm for life.,we must also ensure that Montana kids from unborn babies to teenagers, have an opportunity to reach their full God-given potential,” Gianforte said.

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