Republican lawmakers shy away from changing Montana’s constitutional right to abortion

Reviewed by Emily Henderson, B.Sc.Feb 16 2023

Republican lawmakers in Montana wield a supermajority that gives them the power to ask voters to approve a constitutional amendment that would break the link between abortion rights and the right to privacy in the state's constitution.

While 14 states have near-total bans on abortion since Roe v. Wade was overturned last year, Montana is one example of how, in some Republican-controlled states, the abortion policy battle will likely play out for a while.

"This takes time," said Montana House Speaker Matt Regier, a Republican. "It took years to overturn the wrong decision of Roe v. Wade."

Montana is one of 11 states — most recently joined by South Carolina — where courts have ruled that abortion access is a constitutional right, and legal battles to dismiss or entrench those rights are picking up. In Florida, reproductive health providers are challenging a 15-week total ban on abortion in the state Supreme Court, citing its long-standing interpretation that the state's right to privacy extends to abortion. Legislation is pending over what standards Iowa will adopt after the state Supreme Court reversed its 2018 decision that due process and equal protections secured abortion access.

Meanwhile, in January, Minnesota — which already had a court ruling that abortion is a constitutional right — built that protection into state law and expanded the right to reproductive health care. The same month, the South Carolina Supreme Court struck down a ban on abortions after six weeks, joining states that defined abortion as a right. There, abortion opponents and advocates alike expect more attempts by the Republican-controlled legislature to whittle away access.

In Montana, Republican Gov. Greg Gianforte's administration wants to reverse a 1999 state Supreme Court ruling that said the state's constitutional right to privacy extends to abortions. Republicans could bypass the courts and go straight to the state's voters to make that change without the support of Democratic legislators. That's after Republican lawmakers clinched a supermajority — two-thirds of the legislative seats, allowing the GOP to overturn vetoes and forward constitutional amendments to the ballot.

Republican lawmakers have introduced at least four constitutional amendment bills so far in the legislative session that began in January, but none has dealt with abortion. That may be due to the uncertainty over how Montanans and even Republican lawmakers would react to such a proposal after voters in other states sided with abortion rights advocates on ballot issues in last year's elections.

Kansas and Kentucky voters rejected constitutional amendments that would have declared there is no right to an abortion. Michigan, Vermont, and California voters codified abortion rights in their constitutions. And Montana voters rejected a "born-alive" initiative that would have created criminal penalties for health workers who do not attempt to save the life of a baby, embryo, or fetus after a botched abortion or other birth.

Jessi Bennion, a political scientist who teaches at Montana State University and Carroll College, said Republicans, unsure of where voters stand, are likely hesitant to strike at the state constitution.

"What Republicans are doing right now is they are testing the waters," Bennion said. "The midterms scared a lot of Republicans."

There are also signs of division within the party's ranks. The state Senate recently debated a bill that would add to state law a declaration that the right to privacy does not extend to abortion. The bill passed the Senate 28-21, and is now being considered in the House, but six of the 34 Senate Republicans voted against it.

Republicans hold 102 of Montana’s 150 state legislative seats, and, although they can pass laws with a simple majority, they need a 100-member supermajority to put a proposed constitutional amendment on the ballot. And since the state's Democrats have pushed back against new abortion restrictions, Republicans can't afford too many people splitting from ranks if they propose a referendum.

Some Republicans who voted against the bill said the issue to them wasn't abortion, but the potential encroachment on medical privacy. Sen. Bruce Gillespie has supported bills in past legislative sessions that would limit how far into a pregnancy someone can have an abortion, but he said he couldn't vote for the recent bill.

"I'm not for abortion, but I'm not really for trying to dictate people's rights either," Gillespie said.

Republican Sen. Jeff Welborn, another "no" vote, said he heard from people who, like him, believe there is a time and place for abortions. "There are more people that think like me that don’t necessarily have the courage to vote exactly like me," Welborn said.

Senate GOP spokesperson Kyle Schmauch noted that it's still early in the session, and that a constitutional amendment hasn't been ruled out. But it’s unclear how far people want restrictions to go.

"Montanans as a whole want to see at least some restrictions on abortion," Schmauch said. "I don’t think we’ve got a real reliable sense of exactly voters’ opinions on all the different regulations."

Democratic lawmakers have introduced reproductive health bills to expand access to care, such as requiring insurers to cover a year's supply of birth control, in what they call an effort to find common ground. They also have a draft bill to codify the right to abortion in state law, but as the minority party, the odds are against their proposal advancing far.

"We’re expecting to play defense hard and to watch Republicans try to take away Montanans’ right to make their own decisions about their body," said Democratic Rep. Alice Buckley.