On March 24, 2022, the National Women’s Law Center joined an amicus brief led by the Center for Reproductive Rights and the ACLU of Montana in the case Planned Parenthood of Montana v. State of Montana before the Montana Supreme Court (DA 21-0521). This case involves a challenge to four new laws that would severely restrict abortion access in Montana by creating multiple barriers to medication abortion and also banning abortion at 20 weeks. In 1999, the Montana Supreme Court held in Armstrong v. State, 296 Mont. 361 (Mont. 1999), that the State’s constitution protects the right to abortion to a greater extent than the U.S. constitution. In appealing Planned Parenthood’s victory in the trial court in this case, Montana’s Attorney General has asked the state supreme court to overturn Armstrong and permit the four challenged laws to go into effect.
Our amicus brief argues that Armstrong was rightly decided and highlights the ways overturning that precedent would harm marginalized residents of Montana, particularly LGBTQ Montanans. The brief first explains that the Armstrong Court’s interpretation of the Montana Constitution’s privacy clause is in line with other state supreme courts’ interpretations of their states’ constitutional protections for privacy. Second, the brief highlights that, like the Armstrong Court, other states have interpreted their constitutions’ intentionally broad and inclusive language to provide protections for reproductive autonomy. Finally, the brief explains the potentially dangerous consequences of the Attorney General’s argument that Montana’s constitution protects only those rights that are explicitly enumerated, highlighting the devastating impacts such a holding might have for LGBTQ Montanans. The brief urges the Montana Supreme Court to affirm the trial court’s decision to preliminarily enjoin the challenged laws.