ANTI-CHOICE LAWS
Biased Counseling & Mandatory Delay
Montana has an unconstitutional and unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after the attending physician tells her, during a consultation that may be provided by telephone and must be by means other than a tape recording: (1) the probable gestational age of the "unborn child"; (2) the risks associated with the procedure including, when medically accurate, infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility; and (3) the risks associated with carrying the pregnancy to term.
The unenforceable law also provides that at least 24 hours prior to an abortion the woman must receive a state-mandated lecture by the physician or physician's agent, which may be by tape recording, that includes: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support even when he has offered to pay for the abortion; and (3) that she has a right to review state-prepared materials.
The state-prepared materials must: (1) describe with pictures or drawings the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (2) describe the methods of abortion and the risks commonly associated with each, the "possible detrimental psychological effects" of abortion and adoption, and the medical risks associated with carrying a pregnancy to term; (3) state that the law allows adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care; (4) state that a physician who provides abortion services without a woman's "informed" consent may be liable to her for damages in a civil action; and (5) list, with a 24-hour toll-free hotline, public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while a child is dependent. If the woman chooses to view the materials, she may not obtain an abortion until at least 24 hours after she has been given the materials in person or 72 hours after the materials have been mailed to her.
Mont. Code Ann. §§ 50-20-104, -106 (Enacted 1974; Last Amended 1995); Mont. Code Ann. §§ 50-20-301 to -304 (Enacted 1995).
Upon agreement of the parties, a court held that this law is unconstitutional under the state constitution and issued a permanent injunction prohibiting its enforcement. Planned Parenthood of Missoula v. State, No. BDV-95-722 (Mont. Dist. Ct. Dec. 29, 1999).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Montana allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals, partnerships, associations, corporations, private hospitals, or health care facilities.
What does the refusal clause allow? An individual, partnership, association, or corporation may refuse to participate in an abortion or to provide advice concerning abortion because of religious beliefs or moral convictions. The refusal of an individual, partnership, association, or corporation to participate or provide advice may not be a basis for damages, discrimination, loss of public benefits, or other recriminatory action.
No private hospital or health care facility may be required, contrary to religious or moral tenets or stated religious beliefs or moral convictions, to admit a woman for the purpose of abortion or to permit the use of its facilities for abortion. The refusal of a private hospital or health care facility to admit for or permit abortion may not be a basis for liability, discrimination, loss of public benefits, or other recriminatory action.
An individual, partnership, association, or corporation injured by violation of these provisions may sue for damages and injunctive relief.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Mont. Code Ann. § 50-20-111 (Enacted 1974).
STERILIZATION REFUSAL CLAUSE
Montana allows certain individuals or entities to refuse to perform or participate in sterilizing procedures.
To whom does the refusal clause apply? Individuals, partnerships, associations, corporations, private hospitals, or health care facilities.
What does the refusal clause allow? An individual, partnership, association, or corporation may refuse to participate in sterilization or to provide advice concerning sterilization because of religious beliefs or moral convictions. The refusal of an individual, partnership, association, or corporation to participate or provide advice may not be a basis for damages, discrimination, loss of public benefits, or other recriminatory action.
No private hospital or health care facility may be required, contrary to religious or moral tenets or stated religious beliefs or moral convictions, to admit a woman for the purpose of sterilization or to permit the use of its facilities for sterilization. The refusal of a private hospital or health care facility to admit for or permit sterilization may not be a basis for liability, discrimination, loss of public benefits, or other recriminatory action.
An individual, partnership, association, or corporation injured by violation of these provisions may sue for damages and injunctive relief.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for sterilization services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Mont. Code Ann. §§ 50-5-501, -02, -03, -04, -05 (Enacted 1974).
Restrictions on Young Women's Access to Abortion
Montana law restricts young women's access to abortion.
Is the law enforceable? No. A state court held that this law is unconstitutional and unenforceable because it violates the equal protection clause of the Montana Constitution by infringing, without adequate justification, on young women's privacy rights. Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999) (summary judgment), No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (permanent injunction), appeal filed, No. 99-311 (Mont. Apr. 15, 1999), appeal dismissed, (Mont. Nov. 29, 1999).
Who is considered a minor? A young woman under the age of 18 who has never been married and who has not been granted an order of limited emancipation.
What is required - parental consent or parental notice? Notice.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? No.
What is the process for providing notification? A young woman may not obtain an abortion until at least 48 hours after actual notice has been given to one parent by the attending or referring physician, unless the person entitled to notice waives notice in writing. If actual notice is not possible after a reasonable effort, notice may be made by certified mail. If notice is made by certified mail, the 48-hour period begins to run at noon on the next day on which regular mail delivery takes place.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, but the young woman must go to court.
May the parental mandate be waived if a young woman is a victim of child abuse? Yes, but the young woman must go to court.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies in writing that a medical emergency exists. A medical emergency is defined as a condition that necessitates an immediate abortion to preserve the woman's life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order finding by clear and convincing evidence that she is sufficiently mature enough to make her own decision, that there is evidence that she has been subject to a pattern of physical, sexual, or emotional abuse by one or both parents, or that parental notice is not in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. The U.S. Supreme Court held that this law is constitutional under the federal Constitution. Lambert v. Wicklund, 520 U.S. 292 (1997). However, in a lawsuit challenging the law under the state constitution, a state court held that this law is unconstitutional and issued a permanent injunction prohibiting its enforcement. Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999) (summary judgment), No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (permanent injunction).
Other information about the law: None.
Mont. Code Ann. §§ 50-20-201 to -205, -208, -209, -211, -215 (Enacted 1995), -212 (Enacted 1995; Last Amended 2005).
PRO-CHOICE LAWS
Contraceptive Equity
Montana law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If an insurance plan covers prescription drugs and medical services, it must cover prescription contraceptives and related medical services.
What is the legal basis for this requirement? Unlike other states that have enacted explicit laws guaranteeing equitable coverage for contraception, Montana has not enacted a specific contraceptive coverage law. Rather, Attorney General Mike McGrath has issued a formal, binding opinion, concluding that insurance plans that provide coverage of prescription drugs and other medical services must also provide coverage of prescription contraceptives and related medical services. Attorney General McGrath based his decision on Montana's unisex insurance law and Human Rights Act, both of which prohibit sex discrimination.
Do all employers have to follow the Attorney General's Opinion? Yes. A Montana attorney general opinion is controlling unless a court overrules the opinion or the legislature modifies it.
51 Op. Att'y Gen. 16 (Mar. 28, 2006); Mont. Code Ann. §§ 49-2-309 (Enacted 1983; Last Amended 1993), 49-2-303 (Enacted 1974; Last Amended 2001); Matt Gouras, AG Says Insurers Required to Cover Contraceptives, Assoc. Press, Mar. 29, 2006.
Low-Income Women's Access to Abortion
Montana allows women eligible for state medical assistance for general health care to obtain public funds for abortion where: (1) the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself; (2) the procedure is medically necessary although the woman's life is not in danger; or (3) the pregnancy is the result of rape or incest and the woman states that she reported the crime to the proper authorities or the physician certifies that she is unable to report the rape or incest for physical or psychological reasons. Mont. Dep't of Public Health & Human Servs., Medicaid Recipient/Physician Abortion Certification, Form MA-037 (Aug. 1998); Mont. Dep't of Public Health & Human Servs., Medicaid Provider Manual, Physician Related Servs., 2.4-2.5 (Mar. 2008), at http://www.medicaidprovider.hhs.mt.gov/pdf/physician.pdf.
An unconstitutional and unenforceable regulation prohibits public funding for abortion unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest and the woman states that she reported the crime to the proper authorities or the physician certifies that she is unable to report the crime for physical or psychological reasons. Mont. Admin. R. 37.86.104(8)-(10).
A court held that this regulation violates the Montana Constitution and that the agency exceeded its authority by issuing a regulation barring payment for a medically necessary service. Jeannette R. v. Ellery, No. BDV-94-811 (Mont. Dist. Ct. May 22, 1995).
Protection Against Clinic Violence
A person who knowingly approaches within eight feet of another person without his or her consent within 36 feet of a health care facility entrance for the purpose of giving written or oral information, displaying a sign, or protesting, counseling or educating about a health issue, or who knowingly obstructs, hinders, or blocks another person's entry to or exit from a health care facility, will be fined an amount not to exceed $100. Mont. Code Ann. § 45-8-110. (Enacted 2005).
State Constitutional Protection
A court held that the Montana Constitution protects the right to reproductive choice as a fundamental right and to a greater extent than the federal Constitution. A court struck down under the state constitution a regulation limiting state medical assistance for abortion to cases of life endangerment, rape, and incest. Jeannette R. v. Ellery, No. BDV-94-811 (Mont. Dist. Ct. May 22, 1995). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 1980).
A court struck down under the state constitution a law requiring either notice to one parent or a judicial waiver before a minor could obtain an abortion. Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999) (summary judgment), No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (permanent injunction). Prior to this state court decision, this law had been upheld by the U.S. Supreme Court under the federal Constitution. Lambert v. Wicklund, 520 U.S. 292 (1997).
A court has struck down under the state constitution a law requiring a 24-hour waiting period and receipt of state-mandated information prior to an abortion. Planned Parenthood of Missoula v. State, No. BDV-95-722 (Mont. Dist. Ct. Dec. 29, 1999). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
Additionally, the Montana Supreme Court struck down under the state constitution provisions prohibiting certified physician's assistants from performing abortions. Armstrong v. State, 989 P.2d 364 (Mont. 1999). Prior to this state court decision, the U.S. Supreme Court held that it was unlikely that plaintiffs would prevail on their claim that these provisions constituted an undue burden under the federal Constitution. Mazurek v. Armstrong, 520 U.S. 968 (1997).
OTHER LAWS
Post-Viability Abortion Restriction
Montana's post-viability abortion restriction states that no abortion may be provided after viability unless necessary to preserve the woman's life or health, defined as "the prevention of a risk of substantial and irreversible impairment of a major bodily function." The physician providing the abortion may not intentionally or negligently endanger the fetus. The physician may intentionally endanger the fetus only when necessary to preserve the woman's life or health. A post-viability abortion may not be provided to preserve a woman's health unless three licensed physicians certify in writing that the procedure is necessary. Mont. Code Ann. § 50-20-109 (Enacted 1974; Last Amended 1999).
A court held that the provision requiring the certification by two physicians, in addition to the attending physician, is constitutional. Doe v. Deschamps, 461 F. Supp. 682 (D. Mont. 1976).
A court has also approved a consent decree that limits Montana's abortion ban, which as written, applies to abortions provided as early as 12 weeks, to certain post-viability procedures. Intermountain Planned Parenthood v. State, No. ADV 9900561 (Mont. Dist. Ct. Mar. 23, 2000). The ban, as written, makes the provision of any abortion procedure that falls within a broad definition a felony, unless necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself and no other procedure will suffice. Penalties include a fine of up to $50,000, imprisonment for five to 10 years, or both, and if the person is a physician, permanent license revocation. Mont. Code Ann. §50-20-401 (Enacted 1997). Upon agreement of the parties, a court held that this ban is unconstitutional under the state constitution as applied to procedures provided prior to fetal viability and has issued a permanent injunction prohibiting its enforcement as to pre-viability abortion. Intermountain Planned Parenthood v. State, No. ADV 9900561 (Mont. Dist. Ct. Mar. 23, 2000).
The Montana legislature has further expressed its support for post-viability abortion restrictions. The Montana legislature has stated "[t]he legislature reaffirms the tradition of the state of Montana to protect every human life, whether unborn or aged, healthy or sick. In keeping with this tradition and in the spirit of our constitution, we reaffirm the intent to extend the protection of the laws of Montana in favor of all human life. It is the policy of the state to preserve and protect the lives of all human beings and to provide protection for the viable human life. . . The legislature finds . . . [certain U.S. Supreme Court abortion holdings] apply to unborn persons in order to extend to unborn persons the inalienable right to defend their lives and liberties; . . . absent clear proof that an abortion is necessary to save the life of the woman, the abortion of a viable person is an infringement of that person's rights." Mont. Code Ann. § 50-20-102 (Enacted 1974; Last Amended 1999).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health. NARAL Pro-Choice America opposes Montana's post-viability restriction because the health exception is dangerously narrow.
