Since the June 24 ruling of the U.S. Supreme Court in the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, Republican politicians throughout the country have moved to impose whatever abortion restrictions their legislatures can come up with. The Republican-dominated 2021 Montana Legislature passed a bundle of laws aimed at restricting access to abortion. Three of those laws have been blocked by a court order since September 2021. They include:
- H.B. 136, an unconstitutional ban on abortion at 20 weeks of pregnancy;
- H.B. 171, an omnibus measure creating numerous barriers to medication abortion; and
- H.B. 140, a mandatory ultrasound offer and documentation requirement designed to shame patients and stigmatize abortion.
Now, Republican Governor Greg Gianforte is asking the state’s high court to allow these bills to take effect, reversing a previous decision upholding the right to an abortion (Armstrong v. the State of Montana) and instead putting the matter in state legislators’ hands. Gianforte wrote in a tweet, “It’s the Legislature’s prerogative to set policy regarding life, as it was for over a century until 1999.”
Do Montanans really agree that the Legislature is the final word on who lives and who dies? These are deeply moral decisions and are, frankly, beyond the scope of a group people elected to run the state, not to intervene in citizens’ personal lives.
This is especially true when the case involves a woman’s right to make decisions about her own body and her private reproductive choices, free from government interference. Morality is the differentiation of decisions, intentions, and actions between those that are proper (right) and those that are improper (wrong). Immorality is the active opposition to what is good or right. Morality is the basis of the Golden Rule, which states, “one should treat others as one would like others to treat oneself.”
Gianforte and other acolytes of the “New GOP” who claim they are for “limited and smaller government” apparently have no problem in inserting their personal religious beliefs into the lives of everyone else. What these Republicans are asking the Montana Supreme Court to do is neither good nor right.
Across the land Republicans are passing laws which would make no allowance for abortions in the case of incest or rape, or for medical conditions which threaten the health or life of the mother or the viability of the fetus if it should come to full term because of genetic or non-genetic based maladies. If you are a boy or a girl, teenager or adult, a man, or a woman, and you have been the victim of a rape, your life is changed forever.
The physical injuries may be life-long, along with the possible consequences of sexually transmitted disease. You may forever be warped in your trust of other people, and may have post-traumatic stress disorder, depression, sleep and eating disorders, along with deeper psychological issues such as borderline personality disorder and dissociative identity disorder. In short, your future life will be a mess.
Having to decide to have an abortion is a decision that only a woman will have to make, because it is a unique aspect of the fact that only women can become pregnant. To even suggest that the victim of rape or incest (which in all cases involving sexual intercourse is rape) should be forced to carry this pregnancy to term is is codifying the state as a supreme power to intervene and determine the most intimate personal moral and physical decision a person can make, taking away the person’s right to self-determination in making their own decisions. It is an affront to the basic human rights of freedom, privacy, recognition as a person before the law and freedom from degrading treatment.
So what should happen now? The quick answer is that the Montana Supreme Court in Armstrong is simply saying, given the constitutional right to privacy, the government has no standing on abortion decisions. They are private decisions. The Supreme Court’s decision in Dobbs is wrong and based partly on the assumption that the state has no boundaries on its realm of power. Where does it end? What is privacy and self-determination? If you give into the idea that the state, at whatever level, has no boundaries then laws can be passed dictating to citizens all sorts of directives which are objectively none of the state’s business.
The Dobbs decision has also completely overthrown decades of interpreting the Fourteenth Amendment’s concept of “liberty,” which has been relied on by the court itself to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether or not to bear a child is of a piece with these decisions and is therefore protected for the same reason.
Gianforte, and his administration is asking for the court to re-consider (i.e. redecide) this case in favor of negating this constitutional right. But a myriad of things flow from this. Is the Montana Constitution the law of the land or not? What happened to the oath all of these elected officials took to “uphold and defend the constitution?” What does “limited government” mean? Is the imposition of a right-wing evangelical Catholic ethos what the people of Montana want? Lastly, why is the state the final arbitrator of a woman’s right to choose this very private moral decision?
The position of the Governor and the “New GOP” is not only immoral, it is wrong. They have no business interfering in citizens’ private moral decisions. They should withdraw their petition and let Armstrong stand as it has for over twenty years.
Jim Smith is a Helena resident.
