{"id":374563,"date":"2016-03-31T21:35:49","date_gmt":"2016-04-01T02:35:49","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/state\/montana-law\/montana-abortion-laws.html"},"modified":"2024-11-08T12:15:00","modified_gmt":"2024-11-08T17:15:00","slug":"montana-abortion-laws","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/state\/montana-law\/montana-abortion-laws.html","title":{"rendered":"Montana Abortion Laws"},"content":{"rendered":"\n
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Montana Abortion Laws<\/h1>\n
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\n By John Mascolo, Esq.<\/a> | Legally reviewed by John Mascolo, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

Abortion is legal in Montana until fetal viability. After that, abortion is legal only when a medical emergency makes an abortion necessary to prevent a serious physical health risk to the pregnant patient.<\/p>\r\n

Montana Abortion Law After <\/b>Dobbs<\/i><\/h2>\r\n

In 2022, the U.S. Supreme Court overruled its landmark case Roe v. Wade<\/i><\/a> in Dobbs v. Jackson Women’s Health Organization<\/i><\/a>. <\/i>For decades the Court had upheld abortion rights as part of the right to privacy under Roe<\/i>. The court ruling in Dobbs<\/i> concluded that Roe<\/i> was wrongly decided and returned to the states the power to regulate, even prohibit, abortion.<\/p>\r\n

In Montana, state lawmakers have passed several abortion bans (before and after Dobbs<\/i>) to reduce abortion access in the state. In contrast, the Montana constitution has a right to privacy<\/a>. The state supreme court has interpreted the right to privacy to include decisions by a pregnant woman to maintain or terminate a pregnancy before fetal viability.<\/p>\r\n

Montana Abortion Laws<\/h2>\r\n

In Armstrong v. State<\/i><\/a> (1999), the Montana Supreme Court reviewed the right to privacy in the state constitution’s declaration of rights. Section 10 of Article 2 states: "The right to 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."<\/p>\r\n

The court concluded that the privacy right is fundamental. It includes a person’s right to seek a pre-viability abortion from the health care provider of their choice.<\/p>\r\n

In Armstrong<\/i>, the issue was the state’s rule that only physicians could perform an abortion. The court found that the state could not show a compelling reason to overcome a patient’s access to the services of a physician assistant<\/a> (PA). Also, the law blocking abortions by PAs was not the least restrictive means to address any concerns the state had over safety in health care. As a result, the court found that the physician-only law violated the state constitution. The court’s ruling permitted PAs who were properly licensed and competent also to provide abortion services.<\/p>\r\n

In 2020, voters elected a Republican candidate for governor for the first time in 20 years. Gov. Greg Gianforte opposed abortion rights. He also would not pose a veto threat to new laws passed by the legislature, which has a Republican supermajority. As a result, the state of Montana enacted new abortion bans and restrictions in 2021 and 2023.<\/p>\r\n

Planned Parenthood of Montana, led by director Martha Fuller, has filed legal challenges to the new laws. In 2024, a district court<\/a> judge struck down as unconstitutional under Armstrong <\/i>a state law that banned abortions at 20 weeks. It was based on unsupported allegations that a fetus can feel pain at this point in a pregnancy. The court also foreclosed a state law requiring physicians to perform an ultrasound and offer patients the option to review it and listen for a "fetal heart tone." Finally, the court tossed a law that required in-person appointments for medication abortion and otherwise restricted telehealth services.<\/p>\r\n

In State v. Weems<\/i> (2023), advanced practice nurses<\/a> challenged a state law that prevented them from providing early abortion procedures and treatment under their scope of care. Citing the prior ruling in Armstrong<\/i>, the supreme court ruled that the state could show no compelling interest in barring otherwise competent nurse practitioners from providing abortion services.<\/p>\r\n

Despite blowback from Montana courts, Gianforte signed several new abortion restrictions in 2023<\/a>. This included a ban on "dismemberment abortion" under most circumstances and restrictions on the use of Medicaid funds for abortion. Court challenges<\/a> continue.<\/p>\r\n

In November of 2024 voters approved a ballot amendment to include an explicit right to abortion in the State Constitution. This amendment establishes the right to make decisions about one’s own pregnancy, including the right to an abortion, prior to fetal viability. After viability, the state may impose restrictions or bans on abortion, but exceptions must be made if a healthcare professional determines it is necessary to protect the woman’s life or health. <\/p>\r\n

Montana Abortion Laws: Chart<\/h2>\r\n

As you can see, the status of state abortion laws<\/a> remains fluid. In Montana, the success or failure of the 2024 ballot initiative may help resolve some legal questions for residents and health care providers.<\/p>\r\n

The basic provisions of Montana’s abortion laws are in the following chart. See FindLaw’s Reproductive Rights section<\/a> for more articles and resources.<\/p>\r\n\r\n
Relevant Montana abortion laws<\/th>\r\n

Montana Constitution<\/b><\/p>\r\n

Article II \u2014 Declaration of Rights<\/p>\r\n

When is abortion legal?<\/th>\r\n

Abortion is legal until fetal viability (presumed at 24 weeks gestational age or later). After that, abortion is only legal when it is necessary to prevent a serious health risk to the pregnant patient.<\/p>\r\n<\/td>\r\n<\/tr>

Consent requirements<\/th>\r\n

Abortion providers must get standard informed consent for a medical procedure from patients, no matter their age.<\/p>\r\n

In Planned Parenthood of Montana v. State<\/i><\/a> (2024), the Montana Supreme Court struck down the state’s parental consent for abortion statute. The court found the law violated the state constitutional right to privacy of minor patients seeking abortion care.  <\/p>\r\n<\/td>\r\n<\/tr>

Criminal penalties<\/th>\r\n

State laws ban prosecution of a pregnant patient who has an abortion. Yet, physicians and others who perform or induce an abortion in violation of state restrictions can face felony charges, including up to 10 years in prison and a fine of up to $50,000. <\/p>\r\n<\/td>\r\n<\/tr>

Is medication abortion legal?<\/th>\r\nYes. <\/td>\r\n<\/tr>
Residency requirements for patients<\/th>\r\nNone.<\/td>\r\n<\/tr><\/tbody><\/table>\r\n

Note<\/b>: State laws on abortion are always subject to change through the passage of new legislation, rulings in the higher courts (including federal courts), ballot initiatives, and other means. While we strive to provide current information, please consult an attorney or conduct your own legal research to verify the status of any law you are reviewing.<\/i><\/p>\r\n

How Montana Compares With Other States<\/h2>\r\n

With no national standard after Dobbs<\/i>, state abortion laws<\/a> vary widely.<\/p>\r\n

Montana law allowing abortion up to fetal viability without state interference is consistent with the laws of many states. Western states like California and Washington also provide abortion access until fetal viability. After viability, these states will allow abortion if necessary to preserve the patient’s life or health.<\/p>\r\n

Several states, including Oregon and Colorado, allow abortion throughout all stages of pregnancy.<\/p>\r\n

In contrast, some 18 states, including Montana’s neighbors Idaho, Wyoming, North Dakota, and South Dakota, ban most abortions. Other states allow abortion only in the early months of pregnancy, ending legal access at 12, 15, or 18 weeks.<\/p>\r\n

A Note About Medication Abortion<\/h2>\r\n

In 2022, abortion opponents filed a legal challenge to the use of mifepristone<\/a>, one of two abortion pill medications. They sought to overturn approval of the drug by the Food and Drug Administration (FDA), including rule changes that allowed telehealth appointments and the mailing of prescriptions.<\/p>\r\n

The FDA first approved the use of mifepristone in 2000. Medication abortion now accounts for some 63% of all abortions<\/a> in the U.S. Experts recommend that it only be used in the first 10-12 weeks of pregnancy.<\/p>\r\n

In June 2024, the U.S. Supreme Court<\/a> found that the abortion opponents, physicians who did not perform abortions or prescribe mifepristone, did not have standing to challenge the FDA’s actions. As a result, legal access to medication abortion continues. But states that ban abortions may bring a similar challenge in the future.<\/p>\r\n

Research the Law:<\/b><\/h2>\r\n