Montana’s Current Abortion Laws
Updated: Feb 2
In 2021, several measures were signed into law in Montana that helped to limit abortion in our state. Shortly after, in 2022, ALL of them were blocked due to Planned Parenthood suing the state of Montana over these laws, claiming that they were unconstitutional and effectively preventing the laws from benefiting Montanans. This means that currently, abortion is still fully legal in Montana. Below is detailed informtaion about each law and a link to view the law directly.
Montana's Current Abortion Laws
(ALL are blocked and currently unenforceable)
HB 136 - Establish Pain-Capable Unborn Child Protection Act
(Became Law: 4/28/2021, https://leg.mt.gov/bills/2021/billhtml/HB0136.htm)
This law makes it illegal for an unborn child that is capable of feeling pain to be aborted, except if it is necessary to prevent a serious health risk to the mother of the unborn child. In this law, serious health risks do not include emotional and psychological conditions. It also clearly recognizes that as early as 8 weeks after fertilization an unborn child reacts to pain stimuli, yet the law establishes that the gestational age at which we can be certain a child can feel pain in the womb is 20 weeks old. This means that an abortion may not be performed in Montana on any unborn person that is at least 20 weeks gestational age. This law also lets the parent of a minor seeking an abortion, the mother of an unborn baby, and the father of an unborn baby to take legal action if this law is violated. That means, if a mother has an abortion and it is performed prior to 20 weeks gestational age, the father can take legal action. It also means that if a minor has an abortion and it is performed prior to 20 weeks gestational age, the parent can take legal action.
2. HB 140 - Requiring the provision of information before the performance of an abortion
(Became Law: 4/28/2021, https://leg.mt.gov/bills/2021/billhtml/HB0140.htm)
This law requires that a pregnant woman must be given an opportunity to see an active ultrasound, ultrasound images, and listen the fetal heart tone of her unborn child before an abortion takes place. This includes any medical facility, pregnancy clinic, or abortion clinic.
3. HB 167 - Montana Born-Alive Infant Protection Act
(Became Law: 4/29/21, https://leg.mt.gov/bills/2021/billpdf/HB0167.pdf)
This law declares that babies that are born-alive, including babies born-alive after an attempted abortion in the state of Montana, are legal persons. Since they are legal persons, this law also makes it a requirement for health care providers to offer necessary medical care to preserve the life of the born-alive baby.
4. HB 171 - Montana Abortion-Inducing Drug Risk Protocol Act
(Became Law: 4/28/2021,https://leg.mt.gov/bills/2021/billpdf/HB0171.pdf)
This law outlines certain steps to be taken before a woman is given a chemical abortion (Mifeprex/mifepristone aka RU-486). It requires that a women be examined by a medical practitioner, and is provided comprehensive information on the abortion-inducing drug, including the potential to reverse the affects of the drug. It outlines that a chemical abortion may not be performed after 70 days (10 weeks) have lapsed from the first day of the women’s last menstrual period. It also makes it illegal to provide these types of drugs in schools or anywhere on school grounds. It puts in place clearer and legal requirements for establishing informed consent from those who are given abortion-inducing drugs. This law makes it a requirement for chemical abortions to be reported, as well as adverse events and complications from taking such drugs to be reported.
5. HB 229 - Generally revise insurance laws
(Became Law: 4/30/2021,https://leg.mt.gov/bills/2021/billpdf/HB0229.pdf)
This law makes it illegal for health insurance plans offered through a health insurance exchange in Montana to cover abortion services. In short, it prevents tax-payer funded abortion services.
Other provisions currently active in the state of Montana:
A minor that is 16 or under must have parental consent to receive an abortion.
If a minor under 16 seeks an abortion, a parent must be notified.
Upcoming Legislation on Abortion
ALL of these laws have been blocked by a court case in which Planned Parenthood is suing the state of Montana, claiming that these laws are unconstitutional. Their claim is based on the precedent set by the Montana Supreme Court’s decision in 1999 deciding that Montana’s constitutional right to privacy included the right to “procreative autonomy”. This decision by the court set the precedent that Montana’s Constitution included the right to have an abortion - thus legalizing abortion in Montana. This means NONE of these laws are currently enforceable. The court case could take years and until it is settled, the laws cannot be enforced. New laws may be introduced but the ones listed above are bound by the lawsuit and cannot help Montanans until the proceedings are complete.
LR-131 (HB 167) - Montana Born-Alive Infant Protection Act
On November 8, 2022, the Montana Born-Alive Infant Protection Act (HB 167) is being sent directly to voters. LR - 131 was referred to the ballot by the legislature in Montana in order to by-pass the legal proceedings that are preventing this law from being enforced. This referendum sends the vote straight to Montana voters for the general public to decide if the law should be enacted, or not. On one side, there are claims that the Born-Alive Protection Act is government overreach and limits parents' and professional health care workers’ right to act in privacy and in the best interest of the patients. On the other side, LR - 131 declares an infant born-alive as a legal person and requires medical care to be given to that infant.
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