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State Laws

Montana


Political Information

Executive (Governor)

Pro-choice

Senate

Mixed-choice

House

Mixed-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Expanded Access to Surgical Abortion

The Montana Supreme Court ruled that the state’s physician-only law blocked "a woman from obtaining a lawful medical procedure – a previability abortion – from a health care provider of her choosing," thus violating the right to privacy guaranteed by the state constitution. While the physician-only law is still on the books, some advanced-practice clinicians in the state provide both medication and surgical abortion services.

Armstrong v. State of Montana, 989 P.2d 364 (Mont. 1999)


Abortion Providers: Expanded Access to Non-Surgical Abortion

The Montana Supreme Court ruled that the state’s physician-only law prevented "a woman from obtaining a lawful medical procedure – a previability abortion – from a health care provider of her choosing," thusly violating the right to privacy guaranteed by the state constituion. While the physician-only law is still on the books, some advanced-practice clinicians in the state provide both medication and surgical abortion services.

Armstrong v. State of Montana, 989 P.2d 364 (Mont. 1999)


Abortion Rights

Protections: State Consitutional Protection

A court held that the Montana Constitution protects the right to choose as a fundamental right and to a greater extent than the U.S. 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 U.S. 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 abortion care.  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 U.S. 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 abortion services.  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 U.S. 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 providing abortion services.  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 U.S. Constitution.  Mazurek v. Armstrong, 520 U.S. 968 (1997).


Post-Viability Ban

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.  


Biased Counseling

No state measure.

Mandatory Delays

No state measure.

Insurance Coverage & Abortion

Supports Insurance Coverage of Contraception

Montana law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception.

What is required?  If an insurance plan covers prescription medication and medical services, it must cover prescription contraceptives and related medical services.

What is the legal basis for this requirement?  Unlike other states with 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 medication and other medical services also must 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 it 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 & Abortion

Restricts 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 assault 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 (July 2014), at http://medicaidprovider.hhs.mt.gov/pdf/manuals/physician07012014.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).


Young Women & Abortion

Parental Consent

  Montana law restricts young women’s access to abortion.

Is the law enforceable?  No. In May, 2013, Planned Parenthood of Montana v. State of Montana (ADV: 2013-207) challenged Montana’s parental-consent and parental-notification laws: the Parental Notice of Abortion Act of 2011, and the Parental Consent for Abortion Act of 2013 (Mont. Code Ann. § 50-20-221 to -235 and § 50-20-501 to -511 (Enacted 2012; Last Amended 2013)).  The parental-notification law for persons under 16 years old seeking abortion care became law through a referendum.  The subsequent 2013 law repealed the referendum and replaced it with a parental-consent requirement for any person under 18 years old seeking abortion care.

In a February 2014 decision, a Montana district court judge held that the two measures are unconstitutional, citing an earlier court decision that answered a substantially similar question. The laws is currently enjoined and unenforceable.

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?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for providing consent?  A young woman may not obtain an abortion without notarized written consent of a parent or legal guardian.

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 that she is competent 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.  In May 2013, Planned Parenthood of Montana v. State of Montana (ADV: 2013-207) challenged Montana’s parental-consent and parental-notification laws: the Parental Notice of Abortion Act of 2011, and the Parental Consent for Abortion Act of 2013 (Mont. Code Ann. § 50-20-221 to -235 and § 50-20-501 to -511 (Enacted 2012; Last Amended 2013)).  The parental-notification law for persons under 16 years old became law through a referendum.  The subsequent 2013 law sought to repeal the referendum and replace it with a parental-consent requirement for any person under 18 years old. In a February 2014 decision, a Montana district court judge held that these two measures are unconstitutional, citing an earlier court decision that answered a substantially similar question. These laws are currently enjoined and unenforceable.

Other information about the law:  None.

Mont. Code Ann. § 50-20-501 to -511 (Enacted 2012; Last Amended 2013).  


Family-Planning Policies

Insurance Coverage & Contraception

No state measure.

Low-Income Women & Contraception

Supports Low-Income Women’s Access to Contraception

Montana provides increased access to reproductive-health-care services through a Section 1115 family-planning waiver. The waivers allows the state to cover family-planning services for women between the ages of 19 and 44 with incomes at or below 216 percent of the federal poverty level who are not otherwise eligible for Medicaid or do not have other family-planning coverage. The program is limited to 4,000 participants at a time.  Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) Montana residents.

Beneficiaries of family-planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptive counseling and information; contraceptive supplies, devices, implants and prescriptions; office visits, consultation, examination and medical treatment provided in conjunction with family-planning services; voluntary sterilization; diagnosis, testing and treatment of STIs found during a family-planning visit; pap tests and family-planning-related laboratory testing.

The waiver is set to expire March 31, 2019.

Montana Plan First, Project No. 11-W-00276/8, at https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/mt/mt-plan-first-ca.pdf.


Emergency Contraception

No state measure.

Other Important Issues

Clinic Protections

Clinic Protections

 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).  


Fake Health Centers

No state measure.

Refusals & Guarantees

Refusals of Medical Care

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 abortion services 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 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 abortion services 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.

Anyone 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).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

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