25 June 2022 — 1359 mdt
Preserving abortion rights in Montana depends in large
measure on re-electing MT SC justices Rice and Gustafson
By James Conner
Pro-Choice Rally Sunday
Where: Flathead County Courthouse in Kalispell. When: 1100 MDT. There will be a sister rally at the capitol in Helena at the same time.
Information on current attitudes toward abortion are available at the Pew Research Center and the Public Religion Research Institute.
Yesterday, as expected and feared, the U.S. Supreme Court, in Dobbs v. Jackson Women’s Health Organization, overruled Roe v. Wade, holding there is no federal constitutional right to abortion. Whether abortion will be legal now becomes a state issue, with conservative states hellbent on outlawing the procedure and liberal states allowing it under certain circumstances.
In Montana, the legality of abortion is governed by Armstrong v. State, the 1999 case discussed by retired state supreme court justice James Nelson in his 8 September 2021 post on Flathead Memo:
It is a well-settled principle of constitutional law that, while a state may not provide less protection of a federal constitutional right, it may provide greater protection under its own constitution. Roe v. Wade was grounded in the federal constitutional right to equal protection and due process of law.
However, in Armstrong v. State, 1999 MT 261, the Montana Supreme Court turned to Montana’s Constitution instead of to the Federal Constitution. Montanans are guaranteed the fundamental right of individual privacy under Article II, Section 10 of our State Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
Fundamental constitutional rights are the most stringently protected rights in our Constitution. Legislation infringing such a right is reviewed under strict-scrutiny analysis, meaning that the legislation must be justified by a compelling state interest and must be narrowly tailored to effectuate only that compelling interest.
With this standard in mind, the Court carefully considered the history of the right of individual privacy and determined this right guaranteed that a woman was entitled to make medical judgments affecting her bodily integrity and health — including obtaining a pre-viability abortion — in partnership with her chosen health care provider free from government interference.
Importantly, Armstrong was grounded independently and solely in the right of privacy and other fundamental rights protected in Montana’s Constitution and not in federal constitutional law. In short, Montana provides greater protection for women’s right of procreative autonomy — the right to choose — than does the federal Constitution.
Thus, regardless of what happens to Roe, Montana women will continue to be guaranteed their constitutional privacy right to seek abortion services based on the medical model, free from male-driven partisan and religious meddling.
Armstrong is Montana’s bulwark against a runaway legislature that passes unconstitutional abortion restrictions or bans, and is abetted by a feckless governor who never uncaps his veto pen. But changes to Montana’s supreme court this fall — if incumbent justices Gustafson and Rice are defeated — could pulverize that bulwark. Expect millions of dollars from out of state interests anti-abortion interests to be spent trying to send Rice and Gustafson back to the farm.
Pro-choice activists should put their efforts into re-electing Rice and Gustafson, and into electing pro-choice legislators. The former is more important as Montana’s 2021 legislative session will be controlled huge Republican majorities who will be whooped on by an equally zealous governor. Apart from renewed efforts to outlaw abortion, there may be attempts to curtail the use of contraceptives.
Abortion never will be a settled issue as long as large groups of organized religious true believers, in particular Catholics and some protestant evangelicals and fundamentalists, argue that it’s a sin to abort a fetus, a sin to abort even to save the life of the mother. Pro-choice Americans must organize and gird themselves for an eternal struggle to free women from the shackles of superstition, ignorance, and religious zealotry.
Disturbing insights from historian Heather Cox Richardson
An excerpt from Cox’s free 24 June 2022 Letter from an American:
[Yesterday], thanks to three justices nominated by Trump, the Supreme Court stripped a constitutional right from the American people, a right we have enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they indicated they would protect because it was settled law. Today’s Dobbs v. Jackson Women’s Health Organization decision overturned the 1973 Roe v. Wade decision that recognized a woman’s right to terminate a pregnancy. For the first time in our history, rather than conveying rights, the court has explicitly taken a constitutional right away from the American people.
These two extraordinary events are related. The current-day Republican Party has abandoned the idea of a democracy in which a majority of the people elect their government. Instead, its members have embraced minority rule.
The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.
Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.
But most Americans actually like the government to hold the economic and social playing field level. So, to win elections, Republicans since 1986 have suppressed votes, flooded the media with propaganda attacking those who like government action as dangerous socialists, gerrymandered congressional districts, abused the Senate filibuster to stop all Democratic legislation, and finally, when repeated losses in the popular vote made it clear their extremist ideology would never again command a majority, stacked the Supreme Court.
The focus of the originalists on the court has been to slash the federal government and make the states, once again, the centerpiece of our democratic system. That democracy belonged to the states was the argument of the southern Democrats before the Civil War, who insisted that the federal government could not legitimately intervene in state affairs. At the same time, though, state lawmakers limited the vote in their state, so “democracy” did not reflect the will of the majority. It reflected the interests of those few who could vote.
State governments, then, tended to protect the power of a few wealthy, white men, and to write laws reinforcing that power. Southern lawmakers defended human enslavement, for example, a system that concentrated wealth among a few white men. Challenged to defend their enslavement of their neighbors in a country that boasted “all men are created equal,” they argued that enslavement was secondary to the fact that voters had chosen to impose it.