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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).

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