Montana Bans Second Trimester Abortion Procedures

Also prevents tax dollars from funding elective abortions

A 3D ultrasound showing a baby inside the womb. Fotopress/Getty Images

In a major pro-life move, Montana has enacted a ban on abortion procedures mainly performed for abortions in the second trimester of pregnancy, effectively blocking most abortions after 15 weeks.

Montana Gov. Greg Gianforte’s office said the legislation, House Bill 721, will restrict “dismemberment abortion”—also referred to as dilation and evacuation abortion—“except for during a medical emergency in which the child would not survive outside of the womb.”

The procedure, according to non-profit pro-life organization Live Action, is a surgical procedure “during which an abortionist first dilates the woman’s cervix and then uses instruments to dismember and extract the baby from the uterus.”

“I’m proud to round out our legislative session with another suite of pro-life, pro-family bills that protect the lives of unborn babies in Montana,” Gianforte said in a statement.

The ban took effect immediately upon Gianforte’s signature on Tuesday.

“Dismemberment abortion for non-therapeutic or elective reasons is a barbaric practice, dangerous for the mother, and demeaning to the medical profession. House Bill 721 makes clear that it has no place in Montana,” he previously said during a pro-life bill signing earlier in May.

People found guilty could be fined up to $50,000 and face five to 10 years in prison.

According to the Centers for Disease Control and Prevention (CDC), 5.8 percent of abortions take place between 14-20 weeks, and less than 1 percent of abortions happen after that.

Montana Gov. Greg Gianforte signs five pro-life bills at the Montana State Capitol in Helena on May 3, 2023. State of Montana

Planned Parenthood Lawsuit

Planned Parenthood, in response, filed an emergency request asking a state judge to temporarily block the legislation.

The lawsuit argues that the law is unconstitutional, due to a 1999 Montana Supreme Court ruling, which says the state constitution’s right to privacy “protects a woman’s right of procreative autonomy,” including “the right to seek and to obtain a specific lawful medical procedure, a pre-viability abortion, from a health care provider of her choice.”

In a release, the abortion provider called the procedure “the safest and most common method of abortion after approximately 15 weeks of pregnancy.”

The group had previously filed a lawsuit aimed at challenging the legislation when it passed, but at the time, the lawsuit was determined to be premature.

The lawsuit points out that the law effectively bans abortions after 15 weeks because the dilation and evacuation procedure is the only method to abort a baby in Montana at that point.

Martha Fuller, president and CEO of Planned Parenthood of Montana, said in a statement the legislation is “a grave threat to Montanans’ health and safety and must be blocked.”

She called the ban a “dangerous one” that immediately bars pregnant women “access to care” that was legally available just before Gianforte’s signature.

Sheila Hogan, the executive director of the Montana Democratic Party, said in a release that Gianforte’s signing of the legislation infringes upon “Montanans’ rights and freedoms,” reported The Hill.

Other Pro-Life Actions

Gianforte also signed a pair of bills “to better ensure taxpayer dollars are not used to fund elective abortions,” his office announced.

House Bill 544 specifies what’s required for the state’s Department of Health and Human Services (DPHHS) to make sure abortions covered by Medicaid are medically necessary.

Meanwhile, House Bill 862 blocks the use of taxpayer dollars to fund abortions “except to save the life of a woman or in cases of incest or rape.”

Gianforte said in a statement that Montanans voted in his administration “to boldly defend life, not send their tax dollars to abortion clinics.”

The governor also signed House Bill 937, which sets out rules about how DPHHS can license and conduct oversight of abortion clinics.

Earlier Pro-Life Actions in May

Gianforte’s signing of pro-life bills on Tuesday came after he had signed five other pro-life measures on May 3. This included a ban on abortions after viability at 24 weeks—except in cases where the mother’s life is at risk—and protections for infants born alive following an attempted abortion.

The other three measures were legislation affirming the right of medical providers to practice according to their conscience, a measure to require that all complications from chemical abortions be reported, and a measure to clarify that the right to privacy in the Montana Constitution doesn’t confer a right to abortion.

But less than two weeks later, on May 12, in an unrelated abortion case, the Montana Supreme Court, in a 7-0 decision, reaffirmed its 1999 decision that abortion is a choice protected by the state’s constitutional right to privacy.

“[U]nder Montana’s Constitution, the right of individual privacy—that is, the right of personal autonomy or the right to be let alone—is fundamental,” the court noted (pdf), citing precedent. “It is, perhaps, one of the most important rights guaranteed to the citizens of this State, and its separate textual protection in our Constitution reflects Montanans’ historical abhorrence and distrust of excessive governmental interference in their personal lives.”

“[T]he Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk,” the court also said.

The ruling comes in a case involving a nurse and a clinician who challenged a 2005 Montana law that restricted who could provide abortion services. The law had made it a felony for anyone other than a physician or physician assistant to perform an abortion.