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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 2005).

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. § 50-20-401 (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.

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