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).