Montana Attorney and legal expert, Sean Bracken with Bracken Law Firm, PLLC in Missoula, clarifies the Supreme Court ruling and what it means for Montanans.

“Some States have a “trigger ban,” which means abortion bans go into effect now that Roe v. Wade is overturned.  For example, Idaho, Wyoming, North Dakota and South Dakota have trigger bans, but Montana does not have a “trigger ban.” 

The Montana Supreme Court has its own version of Roe v. Wade already.  In the 1999 Armstrong v. State decision, the Montana State Supreme Court found abortion to be protected as a right to privacy in the Montana Constitution Declaration of Rights. The Montana Supreme Court determined that a right to personal autonomy includes the right to make medical judgments affecting bodily integrity and a woman’s right to obtain a pre-viability abortion.

The Montana State Legislature recently passed laws that would ban abortion after 20 weeks of pregnancy, restrict access to abortion pills and require abortion providers to ask patients if they would like to view an ultrasound or hear the fetal heartbeat. Those laws, however, have been placed on hold by a District Court injunction, pending determination of their constitutionality by the Montana State Supreme Court, which could take quite some time. 

Thus, Montana’s current right to abortion is currently unaffected by the overturning of Roe v. Wade. Montana could even see an influx of out-of-state people seeking abortion, “ Bracken said.

“The Montana legislature is not set to convene again until January 2023.  The Governor could call a special session to specifically address abortion.  There are then two main options if the legislature has enough votes to ban abortion: 1) enact a law, which will then be subject to constitutional scrutiny by the Montana Supreme Court under the Armstrong legal precedent (which held that the Montana Constitution confers a right to abortion before viability), or 2) they can push for a constitutional referendum to change Montana’s bill of rights, which would then have to go before voters,” Bracken said.