Planned Parenthood v. State

. It is the obligation of the courts and Legislature, and an oath taken by

every justice, judge, and legislator in this State, to “scrupulously support, protect and

defend those rights and liberties guaranteed to all persons under our Constitution,”

including the right to privacy. Gryczan,

. Under the

Montana Constitution,

      the right of individual privacy—that is, the right of personal autonomy or the
      right to be let alone—is fundamental. 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.

Gryczan,

.

¶15   The records of the 1972 Constitutional Convention undergird the expansive privacy

right discussed in Gryczan. See Mont. Dem. Party v. Jacobsen,

2024 MT 66

, ¶ 18,

416 Mont. 44

545 P.3d 1074

 (citing Bd. of Regents of Higher Educ. of Mont. v. State,

2022 MT 128

, ¶ 11,

409 Mont. 96

512 P.3d 748

) (“The Framers’ intent controls our

interpretation of a constitutional provision.”). Article II, Section 10, of the Montana

Constitution was adopted unanimously by the Bill of Rights committee to elevate the “right

                                            9
of privacy to explicit Constitutional status.”       Montana Constitutional Convention,

Committee Proposals, February 23, 1972, Vol. II, p. 632 [hereinafter Conv. Comm.

Proposals]. The Committee Report Comments referenced both increased concerns about

the impacts of an advanced technological society and Griswold v. Connecticut,

381 U.S. 479

85 S. Ct. 1678

 (1965) (holding that an implied privacy right in the U.S. Constitution

protected the right of married couples to use contraception). Conv. Comm. Proposals,

Vol. II, p. 632. The committee proposed a broad provision to “permit flexibility to the

courts in resolving the tensions between public interests and privacy” but also hoped “the

[L]egislature will have occasion to provide additional protections for the right of privacy

in explicit areas where safeguards are required.”        Conv. Comm. Proposals, Vol. II,

pp. 632-33.

¶16    When Delegate Bob Campbell introduced the proposal to the entire convention, he

discussed the importance of an express right to privacy in the Montana Constitution given

the lack of any corresponding right in the federal constitution or in the former Montana

constitution. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972,

Vol. V, p. 1680 [hereinafter Conv. Tr.].         Delegate Campbell discussed increasing

technological surveillance and again explicitly referenced Griswold, describing that “the

state did not have a compelling state interest in going into the bedroom of a married couple

to prevent contraception.” Conv. Tr., Vol. V, p. 1681.

¶17    Delegate Campbell went on to express concerns about the future interpretations of

the implied right to privacy at the federal level after Griswold, stating, “[W]e don’t know



                                            10
how the interpretations will go from there, what the [U.S.] Supreme Court will do.” Conv.

Tr., Vol. V, p. 1681. He acknowledged that

       the state must come into our private lives at some point; but what it says is,
       don’t come into our private lives unless you have a good reason for being
       there. We feel that this, as a mandate to our government, would cause a
       complete reexamination and guarantee our individual citizens of Montana
       this very important right—the right to be let alone; and this has been called
       the most important right of them all.

Conv. Tr., Vol. V, p. 1681. Delegate Campbell stressed that the committee did “not try to

define the right, to put in specific examples” because it would be “running a risk” of

eliminating “other areas in the future which may be developed by the court.” Conv. Tr.,

Vol. VI, p. 1851.

¶18    Through the convention debates, the Delegates contemplated the right to privacy

impacting other enumerated rights. Conv. Tr., Vol. V, pp. 1684–85 (discussing the overlap

of the right to privacy within the search and seizure context); Conv. Tr., Vol. VII, p. 2488

(discussing right to privacy in context of the right to know provision); Conv. Tr., Vol. V,

p. 1730 (raising concerns that defeating a proposed amendment in the right to bear arms

provision “tacitly violat[es]” the right to privacy). Thus, the Declaration of Rights in

Montana’s Constitution is not a set of “disconnected and discrete rules” but rather

“encompasses a cohesive set of principles, carefully drafted and committed to an abstract

ideal of just government,” with overlapping rights and guarantees. Armstrong v. State,

1999 MT 261, ¶ 71

296 Mont. 361

989 P.2d 364

.              Gryczan reflected the 1972

Constitutional Convention’s intent that Article II, Section 10, of the Montana Constitution




                                            11
encompass a broad privacy right reflecting personal autonomy and the right to be left alone.

See Gryczan,

¶19 In Armstrong, medical providers and a health clinic challenged the constitutionality

of two statutes that prohibited physician assistants from performing abortions. Armstrong,

¶ 1. Armstrong had two central holdings. First, the right to privacy in Article II, Section

10, of the Montana Constitution “guarantees each individual the right to make medical

judgments affecting her or his bodily integrity and health in partnership with a chosen

health care provider free from government interference.” Armstrong, ¶ 14. Second, within

this broad right, the right to privacy protects a patient’s “right of procreative autonomy,”

which encompasses a person’s “right to seek and to obtain a specific lawful medical

procedure”—pre-viability abortion services. Armstrong, ¶ 14. Armstrong acknowledged

that

[i]n narrowly defined instances the state, by clear and convincing evidence,
may demonstrate a compelling interest in and obligation to legislate or
regulate to preserve the safety, health and welfare of a particular class of
patients or the general public from a medically[]acknowledged, bona fide
health risk. Subject to this narrow qualification, however, the legislature has
neither a legitimate presence nor voice in the patient/health care provider
relationship superior to the patient’s right of personal autonomy which
protects that relationship from infringement by the state.

Armstrong, ¶ 59 (emphasis omitted).

¶20 In reaching its conclusion, Armstrong explicitly acknowledged that the individual

privacy right guaranteed under the Montana Constitution is greater than and separate from

any such right implied in the federal constitution. “Montana adheres to one of the most

stringent protections of its citizens’ right to privacy in the United States—exceeding even

12
that provided by the federal constitution.” Armstrong, ¶ 34 (citing State v. Burns,

253 Mont. 37, 40

830 P.2d 1318, 1320

 (1992); Mont. Human Rights Div. v. City of

Billings,

199 Mont. 434, 439

649 P.2d 1283, 1286

 (1982)).

¶21    Armstrong cited Gryczan’s recognition of “personal autonomy” as part of

“Montanans’ fundamental constitutional right of individual privacy.” Armstrong, ¶ 35

(citing Gryczan,

283 Mont. at 450-51

942 P.2d at 123

). It relied heavily on the 1972

Constitutional Convention transcripts to find an expansive privacy right that protects

citizens “from legislation and governmental practices that interfere with the autonomy of

each individual to make decisions in matters generally considered private.” Armstrong,

¶ 33. Armstrong reiterated the Delegates’ refusal to provide specific examples because

they did not want to risk eliminating “other areas in the future which may be developed by

the court.” Armstrong, ¶ 36 (citing Conv. Tr., Vol VI, p. 1851).

¶22    Armstrong acknowledged the U.S. Supreme Court’s recognition of a woman’s right

to obtain a pre-viability abortion without “undue burden,” grounded in privacy under the

Due Process Clause of the Fourteenth Amendment. Armstrong, ¶ 40 (citing Roe v. Wade,

410 U.S. 113, 153

93 S. Ct. 705, 727

 (1973); Planned Parenthood v. Casey,

505 U.S. 833, 846

112 S. Ct. 2791, 2804

 (1992)).5 The opinion immediately, however, went on to

point out that “[n]otwithstanding, and independently of the federal constitution, where the

right of individual privacy is implicated, Montana’s Constitution affords significantly


5
  Roe in part determined that a fetus does not enjoy a constitutionally protected status until
“viability”—which means when the fetus could survive outside the womb. Roe,

410 U.S. at 163-64

93 S. Ct. at 732

). At the time, viability was estimated to be 26 weeks. Armstrong, ¶ 44
(citing Roe,

410 U.S. at 160, 162-65

93 S. Ct. at 730-33

).
                                               13
broader protection than does the federal constitution.” Armstrong, ¶ 41 (citing Gryczan,

283 Mont. at 448

942 P.2d at 121

) (emphasis added).

¶23    Armstrong thus explicitly and unequivocally acknowledged that the right of

individual privacy—encompassing the right to personal and procreative autonomy—is

protected separately under Montana’s right to privacy, a broader provision independent of

federal law. The Court distinguished the federal “undue burden” test, ruling that Montana’s

Constitution “requires more[,]” and “the government must demonstrate a ‘compelling state

interest’ for infringing this right.” Armstrong, ¶ 41 (citing Gryczan,

). The right to procreative autonomy was “encompassed within the broader

personal autonomy protections afforded by the fundamental right of individual privacy

guaranteed by Article II, Section 10[,] of the Montana Constitution.” Armstrong, ¶ 42.

¶24    In Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215, 231

142 S. Ct. 2228, 2242

 (2022), the U.S. Supreme Court held that the right to abortion is not protected

by an implied right in the Fourteenth Amendment of the U.S. Constitution, thus overturning

Roe and Casey. In analyzing the stare decisis factors, the Court criticized the quality of

Roe’s reasoning for a “viability” line. Dobbs,

597 U.S. at 274-78

142 S. Ct. at 2268-70

.

The Court noted that when Roe was decided, viability was gauged at roughly 28 weeks but

“today” may be 23 or 24 weeks. Dobbs,

597 U.S. at 276

142 S. Ct. at 2269

.

¶25    Here, the District Court reasoned that Dobbs is not controlling because “[f]ederal

precedent is not binding on questions of state constitutional law.” Unlike Dobbs, the

Montana Constitution independently guarantees the right to procreative autonomy through



                                            14
the point of viability. The court noted that Armstrong declined to define the point of

viability, and that viability is a complex concept that varies case by case.

¶26    On appeal, the State argues that the District Court erred in disregarding Dobbs. It

contends that Armstrong relied on Roe to find the right to a pre-viability abortion, that

Roe’s overturning means the right no longer finds support under the Montana Constitution

or the Court’s rationale in Armstrong, and that Dobbs underscores Montana’s numerous

legitimate interests in regulating abortion. The State asserts that Armstrong suffers “the

same untenable defect” as Roe of “rendering viability a judicially created arbitrary line

without legal or medical justification.”      The State further contends that Armstrong

incorrectly relied on certain statements of 1972 Constitutional Convention Delegates to

determine the right to a pre-viability abortion exists as part of the right to privacy. The

State asserts that the right of privacy was primarily meant to protect Montana citizens from

increasing technological surveillance. It asserts that the 1972 Constitutional Convention

intended the issue of abortion be left to the Legislature. In support of this assertion, the

State points to a comment by Delegate Dahood during discussion on Article II, Section 3,

of the Montana Constitution, and to various newspaper clippings and a newsletter covering

the 1972 Constitutional Convention. The State maintains it is not asking this Court to

overturn Armstrong, but instead to narrow it—namely by rejecting the viability standard

and by applying a lesser standard of scrutiny.

¶27    PPMT argues that reconciling Armstrong’s holding with Dobbs, as the State

requests, is “evisceration by another name.” Stare decisis principles “all weigh in favor of

reaffirming Armstrong’s holding that the Montana Constitution independently protects the

                                             15
right to obtain pre-viability abortions.” PPMT asserts that Armstrong was based on the

express right to privacy in the Montana Constitution, which affords significantly broader

protection than does the federal constitution. Dobbs does not change this holding, PPMT

argues, and though Armstrong acknowledged federal protections for abortion, it was

independent of the U.S. Constitution and “expressly and repeatedly grounded the right to

pre-viability abortion in the express protections afforded by Montana’s Constitution.”

PPMT contends a review of the 1972 Constitutional Convention transcripts supports this

holding, and the State’s arguments surrounding the 1972 Constitutional Convention do not

defeat the correct reasoning of Armstrong.

¶28    Decades of established precedent have reaffirmed Montana’s broad privacy right in

numerous contexts. In the criminal context, we consistently have held that the right to be

free from unreasonable searches and seizures in Article II, Section 11, of the Montana

Constitution provides broader protection than does the Fourth Amendment in search and

seizure cases because it is read in conjunction with the heightened privacy protection

provided by Article II, Section 10. See State v. Scheetz,

286 Mont. 41, 46-47

950 P.2d 722, 724-25

 (1997) (reasoning that Montana has broader privacy protections in search and

seizure jurisprudence, and U.S. Supreme Court law is “not determinative” of whether a

government action constitutes a search); State v. Martinez,

2003 MT 65, ¶ 51

314 Mont. 434

67 P.3d 207

 (declining to adopt U.S. Supreme Court reasoning on reliability

requirements for anonymous tips in the search and seizure context because this “Court has

repeatedly held that the unique language of Article II, Section 10[,] of the Montana

Constitution, which establishes privacy as a fundamental right, affords greater protections

                                             16
than the Fourth Amendment in cases involving searches of persons and property”); State

v. Goetz,

2008 MT 296, ¶¶ 13, 54

345 Mont. 421

191 P.3d 489

 (ruling that warrantless

electronic monitoring of face-to-face conversations, with the consent of one party, does not

constitute a search in violation of the Fourth Amendment but does constitute a search under

Article II, Sections 10 and 11, of the Montana Constitution).

¶29    This Court has read an equally broad privacy right in the civil context. E.g. Wenger

v. State Farm Mut. Auto. Ins. Co.,

2021 MT 37

, ¶ 28,

403 Mont. 210

483 P.3d 480


(concluding that “medical records fall within the zone of privacy protected by Article II,

Section 10, of the Montana Constitution” and thus “deserve the utmost constitutional

protection”); Billings Gazette v. City of Billings,

2013 MT 334, ¶ 59

372 Mont. 409

313 P.3d 129

 (reasoning that employees’ “reasonable expectation of privacy in their

identities with regards to internal disciplinary proceedings” outweighs public disclosure

under constitutional right to know provision); State v. Nelson,

283 Mont. 231, 242

941 P.2d 441, 448

 (1997) (noting that Article II, Section 10, of the Montana Constitution

guarantees both “autonomy privacy” and “informational privacy”).

¶30    The Legislature, as contemplated by the Framers, has enacted laws that also

strengthen privacy rights of Montanans in a variety of civil and criminal arenas.

E.g. §§ 20-25-511 through -516, MCA (protecting university students’ records and

residences as part of their privacy rights); §§ 40-4-216, 40-6-111, -120, MCA (relating to

the confidentiality of hearings and records on parenting or paternity proceedings);

§ 61-7-114, MCA (making confidential vehicle accident reports); Title 44, ch. 5, MCA

(creating laws “to establish effective protection of individual privacy in confidential and

                                            17
nonconfidential criminal justice information”); 2025 Mont. Laws ch. 273 (HB 397)

(“revising laws related to privacy in mental health digital service”); 2025 Mont. Laws

ch. 382 (SB 282) (limiting “state government use of personal electronic data”).

¶31    With this backdrop, we turn first to the State’s argument that a viability line is no

longer reasonable given the Supreme Court’s holding in Dobbs. The State and the Dissent,

¶ 131, both fail to address that Dobbs’s central holding was that there was no due process

right to an abortion under the Fourteenth Amendment of the federal constitution. Dobbs,

597 U.S. at 240

142 S. Ct. at 2248

. Dobbs noted that the right to privacy is not mentioned

in the U.S. Constitution. Dobbs,

597 U.S. at 235

142 S. Ct. at 2245

. This is different from

Montana’s Constitution. Unlike the federal constitution, it contains an explicit privacy

right that at its founding contemplated personal autonomy rights as part of the right to

privacy.   Armstrong clearly grounded its reasoning in the independent and broader

protections of Montana’s Constitution, separate from the federal constitution, to find that

the right of personal and procreative autonomy, the right to make medical judgments

affecting one’s bodily integrity in partnership with a health care provider, and the right to

a pre-viability abortion are protected by Montana’s constitutional right to privacy.

Armstrong, ¶¶ 14, 34, 48. Dobbs’s holding on the federal constitutional right to abortion

under the due process clause is separate from Armstrong’s reasoning on the explicit privacy

rights included in the Montana Constitution. Armstrong, ¶ 48.

¶32    The Dissent’s complaint that the abortion right was not deeply rooted in Montana’s

history and tradition, Dissent, ¶¶ 132, 151, similarly is tethered to the federal analysis when

examining whether a fundamental right is implicit in the Fourteenth Amendment’s Due

                                              18
Process clause.    E.g., Dobbs,

597 U.S. at 231

142 S. Ct. at 2242

; Washington v.

Glucksberg,

521 U.S. 702, 720-21

117 S. Ct. 2258, 2268

 (1997) (when applying a

substantive due process analysis to determine if an asserted fundamental right is protected

by the Fourteenth Amendment, courts ask whether the right is “deeply rooted in this

Nation’s history and tradition . . . , and implicit in the concept of ordered liberty”)

(citations and internal quotations omitted). This is not the analysis we employ when

examining a protection afforded by an explicit fundamental right guaranteed by the

Montana Constitution, including the express right to privacy in Article II, Section 10.

“[S]tate courts cannot rest when they have afforded their citizens the full protections of the

federal Constitution. State constitutions, too, are a font of individual liberties, their

protections often extending beyond those required by the Supreme Court’s interpretation

of federal law.”    William J. Brennan, Jr., State Constitutions and the Protection of

Individual Rights,

90 Harv. L. Rev. 489

, 491 (1997) (reprinted in Anthony Johnstone, The

Montana Constitution in the State Constitutional Tradition 12 (2022)).

¶33 Given federal law at the time, Armstrong was correct when it used viability as the

defining standard for permissible regulation. That Roe informed Armstrong’s reasoning

does not invalidate the Court’s analysis grounded separately in the Montana Constitution.

Armstrong, ¶ 48. Armstrong did not adopt the trimester framework rule from Roe or the

undue burden test from Casey. Armstrong, ¶ 41. In fact, Armstrong, unlike Roe, declined

to define viability by gestational age and explicitly imposed a stricter test than Casey’s

undue burden. Armstrong, ¶ 41. Armstrong recognized that “[f]ew matters more directly

implicate personal autonomy and individual privacy than medical judgments affecting

19
one’s bodily integrity and health[,]” and these decisions must “be made in partnership with

a health care provider.” Armstrong, ¶¶ 53, 58. The trust that a patient places in their

medical or health care provider points to the “seriousness of the infringement of personal

autonomy and privacy” when the government “through laws or regulations” usurps “the

patient’s own informed health care decisions made in partnership with his or her chosen

health care provider.” Armstrong, ¶ 58.

¶34 The State argues that because science keeps changing, a viability line is unworkable.

This logic makes the very point against the law that the State attempts to defend. The

statute now substitutes a fixed demarcation of 20 weeks. We agree with the District Court

that viability is a “complex concept, applicable on a case-by-case basis, that requires

medical judgment and may involve some margin for error. It is not reduceable to a

gestational age.” Determination of the viability of a fetus is subsumed within the health

care provider and patient relationship and the medical judgment of the health care provider.

Such judgments rest on the professional evaluation of qualified and licensed medical

providers. See Armstrong, ¶ 62 (recognizing that “legal standards for medical practice and

procedure cannot be based on political ideology, but, rather, must be grounded in the

methods and procedures of science and in the collective professional judgment, knowledge

and experience of the medical community acting through the state’s medical examining

and licensing authorities”). The government, whether through the Legislature or the courts,

has no role in proclaiming when a fetus is viable over the judgment of a medical provider

working with an individual to make private, autonomous decisions about their own health.

A fixed gestational age that does not allow a provider’s case-specific determination fails to

20
ensure that the government does not interfere with an individual’s private medical

decisions.

¶35 What is more, “viability” remains an appropriate standard because it is the point at

which the fetus can survive outside the womb independently (with or without assistance).

See § 50-20-104(6)(a), MCA (defining viability as “the ability of a fetus to live outside the

mother’s womb, albeit with artificial aid”). Until a fetus is viable and able to survive

outside the womb, the right of personal autonomy belongs to the person on whose body the

fetus depends. This reasoning is not without legal authority. Dissent, ¶ 157. Quite the

opposite, it derives from the “overlapping and redundant rights and guarantees” the

Montana Constitution preserves for all individuals, Armstrong, ¶ 71, including pregnant

patients. See Mont. Const. art. II, § 3 (“All persons are born free and have certain

inalienable rights [including] the rights of pursuing life’s basic necessities, enjoying and

defending their lives and liberties, . . . and seeking their safety, health and happiness in all

lawful ways.”); Mont. Const. art. II, § 4 (“The dignity of the human being is inviolable.”).

See also Planned Parenthood of Mont. v. State,

2024 MT 178, ¶ 56

417 Mont. 457

554 P.3d 153

) (concluding that “a minor’s right to dignity, autonomy, and the right to

choose are embedded in the liberties found in the Montana Constitution). In contrast, we

find no legal authority for the idea that the State’s interest in preserving fetal life, or the

fetus’s right to life, takes precedence over all constitutional protections and dignities of the

mother. The viability line thus strikes an appropriate balance of competing interests

because it is the point at which the fetus has a life interest independent of the mother. Until

then, the government may not intrude into the mother’s private health decisions without a

                                              21
compelling interest, narrowly tailored to address a specific health risk to her. Weems v.

State,

2023 MT 82, ¶ 45

412 Mont. 132

529 P.3d 798

; Armstrong, ¶¶ 58-59.

¶36    The State’s argument that a change in the federal landscape mandates a change in

this Court’s holding overlooks our history of independently rooting the individual’s

fundamental personal autonomy right in Montana’s right of privacy, even when not

recognized at the federal level. E.g., Gryczan,

283 Mont. at 448-49

942 P.2d at 121-22


(Montana’s right to privacy protects same-sex, consensual, sexual conduct despite the

federal constitution not recognizing this privacy right). In Lambert v. Wicklund, the

U.S. Supreme Court upheld a Montana law that required minors to notify their parents prior

to obtaining an abortion (subject to certain exceptions). Lambert v. Wicklund,

520 U.S. 292, 299

117 S. Ct. 1169, 1172

 (1997). A Montana district court concluded the law was

unconstitutional under Montana’s Constitution, and the State did not appeal that decision.

Wicklund v. State, No. ADV 97-671,

1999 Mont. Dist. LEXIS 1116

 (Mont. First Jud. Dist.

Feb. 11, 1999).6 In Mazurek v. Armstrong, the U.S. Supreme Court held that the very

statutes at issue in Armstrong v. State likely did not impose an undue burden within the

meaning of Casey and thus reversed the Court of Appeals’ grant of a preliminary

injunction. Mazurek v. Armstrong,

520 U.S. 968, 971

117 S. Ct. 1865, 1866

 (1997) (citing

Casey,

505 U.S. at 884

112 S. Ct. at 2824

).        This Court also refused to follow the


6
  Plaintiffs brought an equal protection claim under Article II, Section 4, of the Montana
Constitution. Wicklund,

1999 Mont. Dist. LEXIS 1116

, *1. Employing an equal protection
analysis, the District Court in Wicklund reasoned that there was not a suspect class, but the law
infringed the fundamental right of privacy under Article II, Section 10, of the Montana
Constitution, thus triggering strict scrutiny review. Wicklund,

1999 Mont. Dist. LEXIS 1116

, *5,
*6, *11.
                                               22
U.S. Supreme Court’s application of a form of rational basis review to an amendment

prohibiting most federal funding of abortions. Planned Parenthood of Mont. v. State,

2024 MT 228, ¶ 34

418 Mont. 253

557 P.3d 440

 (citing Harris v. McRae,

448 U.S. 297

, 324

100 S. Ct. 2671, 2692

 (1980)).      We instead applied strict scrutiny, as the broader

protections of the Montana Constitution demand when the State restricts abortion services

or infringes on “the right of procreative autonomy in favor of birth[.]” Planned Parenthood

of Mont.,

2024 MT 228, ¶ 34

 (citing Weems, ¶ 35; Planned Parenthood of Mont.,

2022 MT 157, ¶ 20

; quoting Armstrong, ¶ 49).

¶37    This Court can, and has, “broken with the United States Supreme Court precedent

on independent state constitutional grounds when that Court has changed the protections

afforded under the United States Constitution.” Mont. Dem. Party, ¶ 21. It is especially

telling that the Delegates, in enacting the right to privacy and referencing Griswold,

commented on the uncertainty of the implied right to privacy at the federal level. Conv.

Tr., Vol. V, p. 1681. See Mont. Dem. Party, ¶ 21 (citing Roe,

410 U.S. 113

93 S. Ct. 705

;

Dobbs,

597 U.S. 215

142 S. Ct. 2228

) (“Implicit rights embedded in the United States

Constitution are subject to expansion or contraction.”). The Delegates sought to solidify

privacy rights for Montanans under their state constitution—regardless of changes in

federal interpretation.

¶38    We next address the State’s arguments on the significance of comments by Delegate

Dahood, as well as various newspaper clippings and newsletters covering the 1972

Constitutional Convention. Delegate Dahood’s comments arose after Delegate Kelleher

proposed an amendment to Article II, Section 3, attempting to confer constitutionally

                                            23
protected status on a fetus at the time of conception.7 Conv. Tr., Vol. V, p. 1640. In

opposing this amendment, Delegate Dahood stated that Delegate Kelleher was attempting

to prohibit abortion by constitutional command, which the Bill of Rights Committee

decided was a legislative matter. The proposed amendment was strongly rejected by the

Delegates, with 15 voting in favor and 71 voting against. In Armstrong, the State raised

the argument—and this Court explicitly rejected it—that because the Convention rejected

Delegate Kelleher’s attempt to confer constitutionally protected status on a fetus at the time

of conception, a woman’s choice to obtain a pre-viability abortion was excepted from

Article II, Section 10, and therefore the right was “subject to legislative determination and

regulation within the parameters of the weaker protections afforded by the federal

constitution and federal law.” Armstrong, ¶ 43. Armstrong noted that the Convention

determined not to deal with abortion in the Declaration of Rights “at this time” but “chose

to leave the matter to the Legislature because of the historical debate as to ‘when a person

becomes a person.’” Armstrong, ¶ 44 (quoting Conv. Tr., Vol. V, p. 1640). “Roe, handed

down a year after the Convention, resolved this debate from the legal standpoint,

concluding that a fetus does not enjoy a constitutionally protected status—i.e., that a fetus

is not a constitutional person—until ‘viability.’” Armstrong, ¶ 44. This Court went on,

however, to ground its holding not only in Roe, but also separately in the Montana

Constitution. Armstrong, ¶ 45 (citing the Delegates’ concern that government interference

be prohibited in private matters and their determination to adopt a broad and expansive


7
  Article II, Section 3, of the Montana Constitution provides, in part, that “[a]ll persons are born
free and have certain inalienable rights.”
                                                24
privacy right “grounded in Montana’s historical tradition of protecting personal autonomy

and dignity,” and concluding that Article II, Section 10, of the Montana Constitution

protects “generally, the autonomy of the individual to make personal medical decisions and

to seek medical care in partnership with a chosen health care provider free of government

interference” and within the right of personal and procreative autonomy, the “right to

obtain a pre-viability abortion”).

¶39    Pointing to other comments and discussions in the Delegates’ debates, amici curiae

delegates and research staff from the 1972 Constitutional Convention argue that Armstrong

is consistent with the Delegates’ intent that the Montana Constitution not delegate to the

Legislature the power to determine and define the scope of the enumerated privacy right.

See Fritz Snyder & Mae Nan Ellingson, The Lawyer-Delegates of the 1972 Montana

Constitutional Convention: Their Influence and Importance,

72 Mont. L. Rev. 53

, 66

(2011). Numerous comments from individual Delegates reflect their vision of a limited

legislative role in circumscribing the Constitution’s individual rights. Conv. Tr., Vol. V,

p. 1677 (comment of Delegate Schlitz that “we shouldn’t be referring things to the

Legislature from the Bill of Rights.”); Conv. Tr., Vol. VII, p. 2496 (comment of Delegate

Graybill that “we should not push on the Legislature the duty of determining what the rights

of the people are in this state”).8 Armstrong is consistent with that intent. See Conv.




8
  Both comments by Delegate Schiltz and Delegate Graybill were during discussion of Article II,
Section 9, of the Montana Constitution (the “right to know” provision). Their comments came
while discussing the balance between the right to know and the right of privacy, both opposing an
amendment that would have allowed the Legislature to “determine the situations in which
individual privacy exceeds the merits of public disclosure.” Snyder &

Ellingson at 68, 70

.
                                               25
Comm. Proposals, Vol. II, pp. 632-33 (reasoning that the broad privacy right permits

“flexibility to the courts in resolving the tensions between public interests and privacy. It

is hoped that the legislature will have occasion to provide additional protections for the

right of privacy in explicit areas where safeguards are required.”) (emphasis added).

¶40    Armstrong noted the Bill of Rights Committee’s reference to Griswold, which dealt

with the “privacy interest inherent in contraception and procreation,” and the “right to be

let alone.” Armstrong, ¶¶ 46-47. The Court reasoned that the specific references to

Griswold were important because “decisions affecting marriage and childbirth are so

intimate and personal that people must in principle be allowed to make these decisions for

themselves, consulting their own preferences and convictions, rather than having society

impose its collective decision on them.” Armstrong, ¶ 47. Changes in federal law do not

change the importance of the Framers’ repeated and explicit references to Griswold in

enacting the right to personal and procreative autonomy as part of the privacy right on

which Armstrong partially based its reasoning.           The defeat of Delegate Kelleher’s

amendment does not undermine the Delegates’ intentions to create strong protections of

personal autonomy. On its face, it was a resounding rejection of constitutionalizing fetal

personhood.     Delegate Dahood’s statement exhorting his colleagues to defeat that

proposition does not sideline the extensive discussion throughout the Convention about

enacting an expansive privacy protection that would be committed to the courts for

enforcement.9


9
  The Court rejected a similar argument in Gryczan,

283 Mont. at 451

942 P.2d at 123

, concluding
that the Delegates’ refusal to add in the Declaration of Rights an explicit protection for private
                                               26
¶41    Finally, the State cites various newspaper articles and a newsletter covering the

Convention that describe how abortion, among other issues, is not included in the Bill of

Rights. The articles mention myriad other issues—for example, the right to work—that

were not contained in the proposed version of the Declaration of Rights. Yet they are issues

on which the Legislature has enacted laws that courts have reviewed under constitutional

standards implicating fundamental rights. E.g., Wadsworth v. State,

275 Mont. 287, 306

911 P.2d 1165, 1176

 (1996) (Article II, Section 3, of the Montana Constitution “explicitly

protects the right to pursue life’s basic necessities as an inalienable or fundamental right,

which . . . includes the right to the opportunity to pursue employment as a necessary

incident.). They do not support overturning decades of case precedent interpreting the right

to privacy as an expansive right including the right to personal and procreative autonomy.10

¶42    The State additionally argues the “people must be able to be heard, through their

elected representatives in the Legislature, on this important and heated social issue.” On

November 5, 2024, the people of Montana approved Constitutional Initiative No. 128. It



sexual acts between consenting adults did not mean the privacy clause did not protect this conduct.
Though it does not mention Gryczan, the Dissent’s criticisms of Armstrong (that abortion was
criminalized in 1972, Dissent, ¶ 144, and that “‘[p]ersonal autonomy’ was not a phrase used by
the Delegates or shared with the voters,” Dissent, ¶ 154) also would call into question this Court’s
decision in Gryczan.
10
  The Dissent’s reliance on the Voter Information Pamphlet and other sources available to the
public, Dissent, ¶¶ 147-149, departs from this Court’s well-established and longstanding reliance
on the Constitutional Convention Transcripts as the authoritative source of the Framers’ intent.
See e.g., O’Neill v. Gianforte,

2025 MT 2

, ¶¶ 18-19,

420 Mont. 125

561 P.3d 1018

; Cottonwood
Env’t Law Ctr. v. State,

2024 MT 313

, ¶¶ 10-13,

419 Mont. 457

560 P.3d 1227

; Brown v.
Gianforte,

2021 MT 149

, ¶¶ 34-43,

404 Mont. 269

488 P.3d 548

; Nelson v. City of Billings,

2018 MT 36, ¶ 14

390 Mont. 290

412 P.3d 1058

; State v. Schneider,

2008 MT 408, ¶ 18

347 Mont. 215

197 P.3d 1020

; Mont. Env’t Info. Ctr. v. Dept. of Env’t Quality,

1999 MT 248, ¶¶ 65-77

296 Mont. 207

988 P.2d 1236

.
                                                27
amends the Montana Constitution to expressly provide “a right to make and carry out

decisions about one’s own pregnancy, including the right to abortion.” Mont. Const. art. II,

§ 36 (effective July 1, 2025). 11 CI-128 prohibits “the government from denying or

burdening the right to abortion before fetal viability.” This amendment is not effective

until July 1, 2025, and thus has no impact on the legal issues here. It answers the State’s

point nonetheless: the people have been heard.

¶43    This Court is not persuaded that the State does not seek to overturn Armstrong but

to “reconcile it.” To hold, as the State explicitly requests, that the viability line no longer

applies or that a lesser standard of scrutiny should be used would overturn several holdings

of Armstrong. “[P]rinciples of law should be positively and definitively settled so that

courts, lawyers and, above all, citizens may have some assurance that important legal

principles involving their highest interests shall not be changed from day to day.” State v.

Running Wolf,

2020 MT 24

, ¶ 21,

398 Mont. 403

457 P.3d 218

. Stare decisis is “a

fundamental doctrine which reflects our concerns for stability, predictability and equal

treatment[.]” Formicove, Inc. v. Burlington Northern, Inc.,

207 Mont. 189, 194

673 P.2d 469, 472

 (1983). Although it does not require that we follow a manifestly wrong decision,

Formicove, Inc.,

207 Mont. at 194-95

673 P.2d at 472

, “[w]e decline to overrule a decision

that has been in effect for over twenty years” and whose reasoning remains persuasive

today. State v. Demonity,

2014 MT 66, ¶ 17

374 Mont. 211

324 P.3d 344

. For 26 years,

Article II, Section 10, of the Montana Constitution has fulfilled its promise of the “right to


11
    Montana 2024 election results, including the results for CI-128, available at:
https://perma.cc/53NX-H4S3.
                                              28
be let alone” by guaranteeing the people of Montana the right to a pre-viability abortion.

Armstrong, ¶ 39; Weems, ¶ 37; Planned Parenthood of Mont.,

2024 MT 178, ¶ 22

.

¶44    Under the legal landscape that existed when it was decided, Armstrong was not

manifestly wrong. Given the robust protection of personal autonomy privacy by both

legislative and judicial branches of government in the decades since, this Court concludes

that its reasoning remains strong. We will not disturb that holding.

Application of Montana Law to the Challenged Statutes

¶45    “Statutes are presumed constitutional, and it is the duty of this Court to avoid an

unconstitutional interpretation if possible.” Hernandez v. Bd. of Cnty. Comm’rs,

2008 MT 251, ¶ 15

345 Mont. 1

189 P.3d 638

. It is the challenging party’s burden to prove that the

statute is unconstitutional, and any doubt must be in favor of the statute. Hernandez, ¶ 15.

Legislation that infringes on fundamental rights, however, is reviewed under a strict

scrutiny standard, and it is the State’s burden in those instances to demonstrate the

legislation is narrowly tailored to achieve a compelling interest. Planned Parenthood of

Mont.,

2024 MT 178, ¶ 16

 (citing Weems, ¶ 34; Armstrong, ¶ 34). “While the analysis of

a statute pertaining to fundamental rights will generally require a strict scrutiny review that

ultimately shifts the burden, we still begin our review with the same principle: statutes are

presumed to be constitutional.”      Planned Parenthood of Mont.,

2024 MT 178, ¶ 16


(quoting Weems, ¶ 34).

¶46    The State argues broadly that it is improper to impose the burden on the State to

prove the existence of a problem as a prerequisite for exercising its police power. The

State is correct that the right to privacy is not absolute. Armstrong, ¶ 38; Goetz, ¶ 26, (the

                                              29
“right to privacy—even where established—is not absolute”); Conv. Tr., Vol. V, p. 1681

(The right to privacy “creates a semipermeable wall of separation between individual and

state . . . . “[W]e all recognize that the state must come into our private lives at some point;

but what it says is, don’t come into our private lives unless you have a good reason for

being there.”). The State also is correct that it is within the Legislature’s right and duty to

enact laws. Powder River Cnty. v. State,

2002 MT 259

, ¶ 115,

312 Mont. 198

60 P.3d 357


(“It is the exclusive power of the Legislature to enact the laws of this state[.]”).

¶47    When the State legislates in a way that infringes on a fundamental right protected

by the Montana Constitution, however, its actions are subjected to higher scrutiny. It is the

State’s burden to show the laws are “justified by a compelling state interest” and are

“narrowly tailored to effectuate only that compelling interest.” Gryczan,

; Robinson v. State Comp. Mut. Ins. Fund,

2018 MT 259, ¶ 19

393 Mont. 178

430 P.3d 69

; Weems, ¶ 41 (“The State has a police power by which it can regulate for

the health and safety of its citizens. The question is not whether the Legislature has

authority to act, but rather whether the Legislature’s action is constitutional.”).

¶48    We employ a three-step analysis to each of the challenged bills: (1) does the law

infringe on a fundamental right to privacy; (2) does the State assert a compelling interest;

and (3) if the State’s interest is compelling, is the law narrowly tailored to achieve that

interest? Wiser v. State,

2006 MT 20, ¶ 19

331 Mont. 28

129 P.3d 133

. For step two, if

the State enacts legislation that invades the right of a person to make medical judgments

affecting their bodily integrity and health in partnership with a chosen health care provider

or the right to seek and obtain pre-viability abortion services, the compelling interest must

                                              30
be a medically acknowledged, bona fide health risk, shown by clear and compelling

evidence. Armstrong, ¶ 59; Cross v. State,

2024 MT 303, ¶ 28

419 Mont. 290

560 P.3d 637

; Planned Parenthood of Mont.,

2024 MT 178, ¶ 18

. Under the relevant tiers of

scrutiny, a legitimate interest (applied under rational basis review) is not a compelling one

(applied under strict scrutiny). Wiser, ¶ 19. A compelling interest in this context is one of

the highest order and not otherwise served. Weems, ¶ 44. For step three, a narrowly

tailored law must effectuate only the asserted interest, Armstrong, ¶ 34, and be “the least

onerous path” needed to achieve the state objective, Weems, ¶ 44 (quoting Wadsworth,

275 Mont. at 302

911 P.2d at 1174

). “A statute is not narrowly tailored if it is either

underinclusive or overinclusive in scope.” Planned Parenthood of Mont.,

2024 MT 178

,

¶ 32 (citing IMDb.com Inc. v Becerra,

962 F.3d 1111, 1125

 (9th Cir. 2020)).12

¶49    1. Does a 20-week ban on abortions violate Montana’s constitutional guarantees of
       individual privacy or equal protection?

¶50    The District Court reasoned that HB 136 “regulates elective abortion without a basis

in recognized medical risks.” As to the State’s interest of mitigating fetal pain, the court

concluded the State failed to present sufficient evidence to establish clear and convincing

proof of medical consensus of a bona fide health risk, and that the possibility of fetal pain

alone does not create a health risk sufficient to justify intrusions on the right to privacy.

Last, noting the overwhelming evidence that abortion is a medically safe procedure, the


12
  Far from affording an absolute right to abortion, Dissent, ¶ 157, this Court examines each
challenge to determine whether the law meets these three factors. The expansive restrictions we
have considered on appeal from final judgments have failed when there has been no showing of
narrow tailoring to a medically acknowledged bona fide health risk. Weems, ¶ 51; Planned
Parenthood of Mont.,

2024 MT 178, ¶ 56

.
31
District Court concluded that the State failed to show how the outright ban was the least

restrictive alternative in light of multiple other avenues by which the State could improve

women’s mental health.

¶51 On appeal, the State asserts a compelling interest in mitigating fetal pain and

protecting women’s health. It contends that HB 136 is narrowly tailored because it

“prohibits only the most gruesome and destructive acts against fetal life; prevents [fetal

pain] . . . at a gestational time when pain can be felt; and very narrowly impacts access to

abortion by targeting a window of time in which few abortions occur.”

¶52 PPMT counters that mitigating fetal pain is not recognized as a compelling interest

under Montana law, the State conflates its evidence on stimuli response with fetal pain,

and it fails to demonstrate that a 20-week ban is the least restrictive means to mitigate fetal

pain to survive strict scrutiny. As to viability, PPMT asserts it is undisputed that 20 weeks

is pre-viability, there is no medical consensus that gestational dating errs as the State

asserts, and even crediting its arguments, 22 weeks is still pre-viability. Last, PPMT argues

that abortion is safe, and the 20-week ban is not narrowly tailored to protect maternal

health.

¶53 First, the law infringes on the right to privacy by prohibiting pre-viability abortions.

PPMT provides abortions up to 21 weeks and 6 days. The record shows without material

dispute that 20 weeks is pre-viability. This is consistent with current law, which presumes

viability to begin at 24 weeks—four weeks after the 20-week restriction imposed by

HB 136. Section 50-20-104(6)(b)(ii), MCA. Because the law prohibits abortions at a

gestational age that is pre-viability, it infringes on the right to privacy to obtain a pre-

32
viability abortion and we apply strict scrutiny. The State must show both a bona fide health

risk by clear and convincing evidence and that the law is narrowly tailored to address only

that risk. Weems, ¶ 34; Armstrong, ¶ 34.

¶54 The State cites extensively in its briefing to mitigating fetal pain as a legitimate

interest recognized by Dobbs. Dobbs recognized various legitimate interests when

applying rational basis review to state abortion regulations under the U.S. Constitution.

Dobbs, 594 U.S. at 301,

142 S. Ct. at 2284

. This is not the standard we apply to the state

constitutional issue presented in this case. Planned Parenthood of Mont.,

2024 MT 227, ¶ 21

418 Mont. 226

557 P.3d 471

(distinguishing the applicability of rational basis review

under Dobbs and reaffirming that privacy right challenges under the Montana Constitution

trigger strict scrutiny). Plaintiffs raise no challenge under the Fourteenth Amendment of

the U.S. Constitution. Dobbs does not control here, nor does its standard of rational basis

review. A legitimate interest is not sufficient; the State must a show a compelling

interest—in this case, a medically acknowledged, bona fide health risk. Armstrong, ¶ 59.

¶55 We thus ask whether mitigating fetal pain is a compelling interest to justify banning

a certain class of pre-viability abortions. Until viability, the bona fide health risk

contemplated in Armstrong attaches to the mother—the paramount consideration is to her.

See Weems, ¶ 45. Post-viability is when the State’s interest in the preservation of fetal life

may attach. The State does not direct its arguments to the post-viable period, and HB 136

undisputedly applies pre-viability, before that interest arises. Additionally, as discussed

further below, the District Court was correct that, despite the State’s assertions, the record

shows there is not medical consensus that a fetus can experience pain at 20 weeks.

33
See Armstrong, ¶ 62 (the “legal standards for medical practice” must be “grounded in the

methods and procedures of science and in the collective professional judgment, knowledge

and experience of the medical community”). According to amici curiae thirteen national

and local organizations representing physicians and other medical professionals, “[e]very

major medical organization that has examined the issue has concluded, based on decades

of peer-reviewed studies, that fetal pain perception is not anatomically possible before at

least 24 weeks of gestational age.” The District Court was correct that the State failed “to

show the ‘collective professional judgment, knowledge and experience of the medical

community’ necessary to demonstrate” a compelling interest. Armstrong, ¶ 62.

¶56 Most conclusive to our analysis, the law fails narrow tailoring. The State has not

shown that banning all abortions at 20 weeks is the least restrictive way to mitigate fetal

pain, when its experts allege that a fetus can feel pain as early as 12 weeks. Such an

arbitrary threshold would be underinclusive and undermines the State’s alleged interest.

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 547

113 S. Ct. 2217, 2234

 (1993) (“It is established in our strict scrutiny jurisprudence that a law cannot be

regarded as protecting an interest of the highest order . . . when it leaves appreciable

damage to that supposedly vital interest unprohibited.”) (citations and internal quotations

omitted).    When a law is underinclusive, it “diminish[es] the credibility of the

government’s rationale . . . in the first place.” See City of Ladue v. Gilleo,

512 U.S. 43, 52

114 S. Ct. 2038, 2044

 (1994). As the District Court noted, “there is no evidence of any

other pregnancy-related procedure that the State regulates based on” when a fetus can

experience pain.

                                              34
¶57    The State asserts an interest in protecting women’s health and safety. It argues there

are physical safety risks of abortion at later stages and that abortions lead to worse mental

health outcomes. The State generally has a compelling interest in protecting patients’

health and safety. See Weems, ¶ 38. Like in Gryczan, however, this compelling interest

may fail when it rests “on faulty logic and invalid assumptions” and fails to establish a

“clear relationship between the statute and any public health goals.” Gryczan,

283 Mont. at 452-53

942 P.2d at 123-24

. The record shows that abortion is safe. As the District

Court noted, there were zero deaths caused by abortion in Montana between 2010 and

2020, and only 25 of 8,402 (0.3%) reported abortions in Montana from 2016 to 2021

resulted in complications. The National Academies Study similarly concluded that “legal

abortions in the United States—whether by medication, aspiration, [dilation and

evacuation], or induction—are safe and effective.” The study noted that even though the

risk of serious complications increases with gestational age, serious complications are rare

(occurring in fewer than one percent of abortions in the vast majority of studies and not

exceeding five percent in any identified study). The American College of Obstetricians

and Gynecologists also states that abortion is safe and major complications are rare.

Because abortion is “safe and presents relatively minimal health risk,” we can “dispose of

any of the State’s claimed compelling state interests which might be premised upon

abortion care presenting a medically acknowledged, bona fide health risk.” Planned

Parenthood of Mont.,

2024 MT 178, ¶ 30

; Weems, ¶ 48.

¶58    The State describes in detail the manner through which dilation and evacuation

abortions are performed. This Court cannot find a bona fide health risk simply based on a

                                             35
detailed step-by-step description of what the State defines as a “barbaric” and “gruesome”

procedure when the overwhelming evidence shows that procedural abortions are safe. For

the description of a medical procedure, without more, to constitute a bona fide health risk

arguably would apply to myriad other medical procedures when defined in detail.

Whatever may be the motivation behind them, Armstrong warned against laws that infringe

on a “zone of individual privacy under the guise of protecting the patient’s health” but lack

clear and convincing evidence of a demonstrated connection. See Armstrong, ¶ 60. The

State has not shown a medically acknowledged, bona fide health risk.

¶59    Additionally, the law is not narrowly tailored to the asserted interest of protecting

women’s mental health. Setting a bright-line ban on abortion is not the least restrictive

means because, as the District Court noted, “there are myriad other avenues by which the

State could improve mental health outcomes without altogether” banning pre-viability

abortion. The law’s over-inclusivity fails to account for the mental health consequences of

being forced to carry to term an unwanted pregnancy. Planned Parenthood of Mont.,

2024 MT 178, ¶ 50

 (“The consequences of not being able to terminate an unwanted

pregnancy can be decidedly more traumatic and severe than for obtaining an abortion.”).

¶60    The State asserts that poor mental health outcomes, when a patient chooses to have

an abortion, are one of the adverse effects it is trying to protect against, yet HB 136

excludes psychological and emotional impacts as a basis for permitting abortion past

20 weeks. Sections 50-20-602(9), -603(1)(a), MCA (2021).13 This suggests that a person’s


13
  All further references in this Opinion are to the 2021 version of the Montana Code Annotated
unless otherwise noted.
                                             36
mental health matters to the State only to prevent abortion, not as a valid reason to obtain

one. See Planned Parenthood of Mont.,

2024 MT 178, ¶ 42

(reasoning the disputed law

failed narrow tailoring when it singles out abortion relative to other types of health care,

including pregnancy-related care).

¶61 Nor can we accept the State’s argument that the law is narrowly tailored because it

forecloses only about ten abortions a year. Article 10, Section II, of the Montana

Constitution protects each individual’s right to privacy. The State cites no case law, and

this Court does not accept, that simply because fewer people’s fundamental rights are

violated, it is somehow less restrictive. A law infringing any person’s fundamental right

to privacy triggers the same scrutiny.

Dispute of Material Facts

¶62 The State challenges the entry of summary judgment, alleging that there are material

facts in dispute regarding all three bills. We address the State’s material facts arguments

separately under our discussion of each bill. The District Court granted PPMT summary

judgment, and we thus analyze PPMT’s motion as the prevailing, moving party. Sands,

¶ 17 (citing Hajenga, ¶ 18).

¶63 For its ruling on HB 136, the District Court reasoned that, under current medical

science, it is undisputed that no fetus is viable at 20 weeks; it found that no fetus born in

Montana on record has survived at 22 weeks or earlier. The court further reasoned that “a

bright-line ban approaching the point of viability would likely infringe the rights of some

patients whose gestational length has been overestimated,” and “any attempts by the State

to regulate abortion by defining viability in terms of gestational age alone should be

37
constitutionally suspect.” The court thus concluded that given “the undisputed facts

surrounding current medical science and the inherently case-by-case nature of viability,”

HB 136’s 20-week limit on abortion infringes the right to privacy, “as would any law set

out that way.”

¶64 The State first argues that “material disputes regarding whether HB 136 affects

pre-viability abortions exist” because the estimation of gestational age may be off by one

to two weeks. Thus, the State asserts that permitting abortions beyond 20 weeks presents

a bona fide health risk that abortions may occur when the fetus was viable. Second, the

State asserts there are material facts in dispute regarding the developmental stage at which

a fetus can feel pain.

¶65 The party moving for summary judgment has “the initial burden of establishing the

absence of a genuine issue of material fact and entitlement to judgment as a matter of

law[.]” Meloy v. Speedy Auto Glass, Inc.,

2008 MT 122, ¶ 18

342 Mont. 530

182 P.3d 741

. Once it meets this burden, “the burden shifts to the nonmoving party to establish with

substantial evidence, as opposed to mere denial, speculation, or conclusory assertions, that

a genuine issue of material fact does exist or that the moving party is not entitled to

judgment as a matter of law.” Meloy, ¶ 18. Here, PPMT has shown that HB 136 infringes

the privacy right of procreative autonomy. It is the State’s burden to show a genuine issue

of material fact.

¶66    Mere disagreement about facts does not preclude summary judgment. The “factual

dispute must be material to preclude summary judgment.” Fabich v. PPL Montana, LLC,

2007 MT 258

, ¶ 44,

339 Mont. 289

170 P.3d 943

. “Material issues of fact are identified

                                            38
by looking to the substantive law governing the proceedings.” DeVoe v. State,

281 Mont. 356, 366

935 P.2d 256, 263

 (1997) (citing Carelli v. Hall,

279 Mont. 202, 207

926 P.2d 756, 760

(1996)). Here, the substantive law requires the State to establish by clear and

convincing evidence a medically acknowledged bona fide health risk.

¶67 We first address the State’s arguments surrounding viability and potential errors in

gestational age. The State’s experts testified that while viability used to be 24 to 26 weeks,

viability has now decreased. Despite the 24-week statutory presumption, two of the State’s

experts considered viability to be 22 to 23 weeks (with one expert stating there had been a

baby who survived at 21 weeks and one day), while one considered the margin to be 22 to

24 weeks. The State’s experts agreed that viability depends on various factors, it is a

moving line, and medical professionals must “take care of each individual as they present.”

The State’s expert testimony further conceded that 20 weeks is generally pre-viability.

PPMT asserts that viability depends on various factors but that 20 weeks is undisputedly

pre-viability. A bright-line ban at 20 weeks would prohibit pre-viability abortions, even

with potential inaccuracies for gestational dating. The testimony that the State highlights

to support its assertion that there are inaccuracies with gestational age dating simply states

that there may be inaccuracies as gestational age increases. PPMT experts state that even

at 20 weeks, the margin of error is only one to one-and-a-half weeks. Even construing this

evidence in the light most favorable to the State, the speculative nature that gestational age

could be off by one or two weeks, or that advancements in medical science increase the

odds of unborn children surviving outside the womb at younger gestational age, does not

rise to the level of substantial evidence needed to demonstrate any risk of abortion of viable

39
fetuses. Rich, ¶ 12 (reasoning the speculative arguments do not raise genuine issues of

material fact).

¶68 As discussed earlier, the State’s argument is self-defeating. It emphasizes

uncertainty in viability and gestational age dating, while at the same time advocating for a

bright-line ban at a gestational age that its own experts concede includes pre-viability

abortions. The State’s experts testified that viability is a case-by-case determination

depending on individual needs. A bright-line ban that does not allow individual assessment

and that undisputedly includes pre-viability abortions is not legally or medically justified.

A viability determination is part of the doctor-patient relationship where each patient’s

condition and circumstances may be evaluated and the patient is able, with the help of her

chosen medical provider, to make medical judgments “affecting her or his bodily integrity

and health . . . free from the interference of the government.” Armstrong, ¶ 75. Because

viability is part of the doctor-patient relationship, and 20 weeks is undisputedly

pre-viability, the State’s alleged arguments on errors in gestational age dating are both

immaterial and speculative.

¶69 Second, the State argues there are material facts in dispute related to a fetus’s ability

to feel pain. The State’s experts testified in depositions that a fetus can feel pain as early

as 12 weeks and that anesthesia or analgesia is administered during surgery, in part to

suppress a fetus’s stress response. One of the State’s experts acknowledged, however, that

the “consensus cutoff is 24 weeks,” and another testified they were aware these views were

inconsistent with the American College of Obstetricians and Gynecologists and the Royal

College of Obstetricians and Gynecologists. PPMT asserts that a stress response is an

40
automatic physiological process which is not the same thing as an ability to feel pain.

PPMT witnesses and experts testified in their depositions that the overwhelming literature

suggests that “if pain were going to be possible, it would not be possible until 24 weeks”

because key connections to the brain do not develop before that time.

¶70 Generally, conflicting expert testimony creates a dispute of fact, but the fact in

dispute must be material. Wood v. Old Trapper Taxi,

286 Mont. 18, 27

952 P.3d 1375

,

1381 (1997). A fact is material if it is outcome-determinative. Anderson v. Liberty Lobby,

Inc.,

477 U.S. 242, 248

106 S. Ct. 2505, 2510

 (1986) (“Only disputes over facts that might

affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). The State’s arguments fail because this dispute is not material.

Even if we were to assume a compelling interest in mitigating fetal pain, the State’s

evidence would not be outcome-determinative because—as discussed above—it failed to

show that a 20-week abortion ban is the least restrictive way to achieve its interest. The

State’s experts acknowledged that their views that a fetus could feel pain as early as twelve

weeks were inconsistent with the “consensus cutoff” and with the conclusions of the

American College of Obstetricians and Gynecologists and the Royal College of

Obstetricians and Gynecologists.      “A statute is not narrowly tailored if it is either

underinclusive or overinclusive in scope.” Planned Parenthood of Mont.,

2024 MT 178, ¶ 32

. Taken as a whole, the State’s expert testimony established that the 20-week abortion

ban was, at a minimum, underinclusive while also acknowledging it was potentially

overinclusive. In either case, the State failed to present a disputed material fact that the

statute was narrowly tailored to address mitigation of fetal pain.

                                             41
¶71    Even accepting the credibility of all the State’s witnesses, the State’s evidence could

not supply clear and convincing proof of a bona fide health risk determined by the medical

community that HB 136 would alleviate. Armstrong, ¶ 62. It fails to meet the standard of

the “collective professional judgment, knowledge and experience of the medical

community” by clear and convincing evidence. Armstrong, ¶¶ 59, 62. It also fails to

demonstrate that its proposed method of vindicating its asserted interests is narrowly

tailored to those interests. Weems, ¶¶ 44-45. The District Court did not err in granting

summary judgment that HB 136 violates Montana’s constitutional right to individual

privacy.

Equal Protection Claim

¶72    Finally, citing Snetsinger v. Mont. Univ. Sys.,

2004 MT 390

325 Mont. 148

104 P.3d 445

, the District Court concluded that HB 136 violates the equal protection clause

under Article II, Section 4, of the Montana Constitution because “it wrongly creates legal

classifications based on the exercise of a fundamental right.”

¶73    Article II, Section 4, of the Montana Constitution guarantees that “[n]o person shall

be denied equal protection of the laws.” Our equal protection clause guarantees more

individual protection than does the Fourteenth Amendment of the U.S. Constitution.

Snetsinger, ¶ 15.   “When analyzing an equal protection claim, the Court follows a

three-step process: (1) identify the classes involved and determine if they are similarly

situated; (2) determine the appropriate level of scrutiny to apply to the challenged

legislation; and (3) apply the appropriate level of scrutiny to the challenged statute.”



                                             42
Planned Parenthood of Mont.,

2024 MT 178, ¶ 26

 (quoting Goble v. Mont. State Fund,

2014 MT 99, ¶ 28

374 Mont. 453

325 P.3d 1211

).

¶74    The classes involved here are women exercising their right to a pre-viability

abortion before and after 20 weeks’ gestational age. The classes are similarly situated

because both comprise pregnant women seeking the same reproductive health care before

the fetus is viable. “Strict scrutiny applies if a suspect class or fundamental right is

affected.”   Snetsinger, ¶ 17 (emphasis added) (citing McDermott v. Mont. Dept. of

Corrections,

2001 MT 134, ¶ 31

305 Mont. 462

29 P.3d 992

). HB 136 creates a legal

classification based on the exercise of the fundamental right to a pre-viability abortion in

consultation with the patient’s chosen medical provider. As such, the law must pass strict

scrutiny. Planned Parenthood of Mont.,

2024 MT 178, ¶ 29

. This applies even when the

underlying classification itself is not suspect. Planned Parenthood of Mont.,

2024 MT 178, ¶ 64

(Rice, J., concurring). Because it is the same strict scrutiny standard applied above,

our analysis also is the same. HB 136 consequently also violates Article II, Section 4, of

the Montana Constitution.

¶75 2. Do restrictions on medication abortions and requirements that providers give
patients certain information violate Montana’s constitutional guarantees of
individual privacy and free speech?

¶76 The District Court concluded that HB 171 is unconstitutional because it “violates

the right to privacy by imposing numerous and severe burdens on patients and providers”

without showing a bona fide health risk. The court reasoned that these “restrictions

effectively ban an entire method of treatment which otherwise serves a critical gap in care,

under the guise of protecting the very patients whose rights they undermine.”

43
¶77 On appeal, the State argues that HB 171’s requirements for mifepristone distribution

are “little more” than what the U.S. FDA requires; that medication abortions always

involve a significant risk of serious complications; that the law serves to prevent coercion

and that it minimizes interference with a pregnant mother’s rights while “promoting respect

for and maximizing opportunities to preserve unborn life.” Additionally, the State

contends that the Legislature “rationally acted” to ensure women know about abortion

reversal, and the credentialing and reporting requirements are similar to what providers

already do.

¶78 The legislative purpose of HB 171 lists protecting the health and safety of women,

ensuring informed consent, ensuring medication abortions are not administered to someone

who has already miscarried, and ensuring that medication abortions are not prescribed after

70 days from the last menstrual period. Section 50-20-702, MCA. Because HB 171 has

various separate sections, we analyze the sections separately (as the District Court also

did). We employ the same three-step analysis: (1) does the law infringe on a fundamental

right to privacy; (2) does the State assert a compelling interest; and (3) if yes, is the law

narrowly tailored? Wiser, ¶ 19.

Telehealth Ban, 24-Hour Waiting Period, and Multiple Visits

¶79 HB 171 bans direct-to-patient telehealth medication abortions, which allow a patient

to receive medication abortions through the mail after meeting with a provider via a secure

video telehealth platform to determine their eligibility. Section 50-20-704, MCA. Instead,

it requires multiple in-person visits: one initial visit, followed by a 24-hour wait after

signing a state-mandated consent form (discussed below); then the patient must return to

44
receive the medication abortion in-person; and then the provider must schedule an in-

person follow-up. Sections 50-20-704, -705, -707, -708, MCA. The mandatory 24-hour

waiting period between the consent form and receiving treatment is subject to narrow

exceptions, explicitly excluding psychological or emotional conditions.

¶80 PPMT provides medication abortions to patients via three ways: (1) in person at the

health center; (2) site-to-site where a patient at one PPMT center connects via

teleconference to a provider at a different center; and (3) direct-to-patient (commonly

referred to as telehealth medication abortions). From July 2020 through June 2021,

76 percent of the medication abortions provided were through site-to-site or

direct-to-patient. Montana has only seven facilities that provide abortions—limited to five

urban areas. PPMT has five health centers—two in Billings and one each in Helena,

Missoula, and Great Falls. The District Court took judicial notice that the state covers

147,040 square miles, and each facility must cover an average of 21,006 square miles (or

145 miles on each side). Further, though only two of PPMT’s health centers provide

procedural abortions, all PPMT health centers offer medication abortions. The court’s

reasoning substantiates that the facilities are not evenly located but are concentrated in

urban areas, thus exacerbating the disparities and requiring some patients to travel several

hours for care. Deposition testimony showed that telehealth medication abortions offer an

option to patients who live hours from the clinics, have jobs, childcare responsibilities, or

physical disabilities, and who are otherwise unable to reach the clinic, but the waiting

periods and in-person requirements all make it more difficult for people to access abortion

care.

45
¶81 Under step one, the law infringes on the fundamental right to a pre-viability abortion

because it impacts how and when a patient can get a pre-viability abortion. Armstrong,

¶¶ 58, 65 (infringement occurs when the State “dictates how and by whom a specific

medical procedure is to be performed” or “attempt[s] to make it as difficult, as inconvenient

and as costly as possible”); see also Weems, ¶ 43. This does not set a new standard

protecting “the ease” of obtaining an abortion, Dissent, ¶ 164, but is grounded in our

holdings in Armstrong and Weems. The Legislature has latitude to regulate how and when

a patient gets an abortion if it is narrowly tailored to advance a compelling interest. Before

asking that question, we consider whether a challenged law infringes the privacy right in

the first place. In this case, the law completely bans one form of pre-viability abortion

(telehealth medication abortions) and makes it more difficult and costly to obtain an

in-person medication abortion by requiring multiple in-person visits and a 24-hour waiting

period. Medication abortions are administered only up to eleven weeks from the first day

of the last menstrual period; HB 171 thus exclusively deals with pre-viability abortions.

By prohibiting one form of pre-viability abortion and making another more difficult to

obtain, the State infringes on a fundamental privacy right.

¶82 We thus look to whether the State has shown a “medically[]acknowledged, bona

fide health risk, clearly and convincingly demonstrated” to justify this intrusion.

Armstrong, ¶ 62. The State alleges that the 24-hour waiting period under HB 171 reflects

the State’s interest in preserving unborn life. This is not a recognized compelling interest

that the State can assert pre-viability to support HB 171. The State must show that there

are “exacerbated health risks” when telehealth medication abortions are provided. Weems,

46
¶ 45. The State has not done so. The Dissent suggests that routinely scheduled surgeries

and other outpatient procedures often require two separate visits. Dissent, ¶ 165. But it

points to no other example of a state statute mandating a specific healthcare procedure in

such a detailed fashion instead of allowing medical professionals to determine the needs

and make assessments of their own patients based on their professional knowledge of and

expertise in the procedure the patient will be undergoing and the risks it entails.

¶83 PPMT presented evidence that telehealth medication abortions are safe, acceptable,

effective, and improve access to care. The National Academies Study reported that

telehealth medication abortions do not pose a significantly higher prevalence of adverse

events compared with in-person provision of medication abortions, and overall present a

very low risk of adverse events (similar to over-the-counter medications).14 The State’s

own authority on FDA regulations shows that the FDA currently allows telehealth

medication abortions, thus defeating its argument that the restrictions are comparable to

FDA regulations.15 The State additionally argues that the FDA authorizes medication

abortions only up to 70 days gestation, but it provides no evidence that providing

medication abortions up to 77 days presents a health risk. More importantly, the State fails

14
The State argues in briefing that mifepristone can “cause potentially lethal hemorrhage and
sepsis[.]” Its brief in the District Court cites to the National Academies Study. The cited section
discussing complications concluded that such complications are rare and occur “in no more than a
fraction of a percent of patients.”
15
The State, citing All. For Hippocratic Med. v. FDA, No. 23-10362,

2023 WL 2913725

 at *2
(5th Cir. 2023), argues that the FDA requires in-person office visits. As PPMT points out, the case
and its subsequent history show that the FDA regulations that allow telehealth medication
abortions remain in effect. See FDA v. All. For Hippocratic Med.,

602 U.S. 367

, 374, 376-78,

144 S. Ct. 1540

, 1552-54 (2024).
47
to show how a complete ban on telehealth medication abortions would justify this concern.

It certainly is not the “least onerous path[.]” Weems, ¶ 44.

¶84 The State cites the need for an in-person follow-up to ensure women are not

experiencing complications. PPMT’s current procedure includes a telehealth visit to

ensure the patient is eligible for a telehealth medication abortion and there are no

contraindications (such as risk factors for an abnormal pregnancy); as well as post-care

options including a 24/7 telephone hotline the patient can call and different follow-up

protocols “depending on what is medically indicated” based on the treating provider’s

judgment. This, in addition to the earlier referenced studies that there have been zero

deaths caused by abortion in Montana between 2010 and 2020 and the low rate of

complications, means the State has not “clearly and convincingly” demonstrated a bona

fide health risk that a mandatory in-person follow-up appointment for telehealth medication

abortions would alleviate. Instead, it unlawfully substitutes the government’s judgment

for that of the medical community and the individual’s private, autonomous

decision-making about their health matters. See Armstrong, ¶ 62.

¶85 The State purports to ban telehealth medication abortions to protect patient safety,

but in its defense of HB 136 (the 20-week ban), cites the risk of more complications in later

term abortions as a reason to ban abortions at 20 weeks. The record demonstrates that

compliance with the 24-hour wait period, the multiple in-person visits, and the telehealth

ban serve only to delay access to abortion care—thus increasing the odds that the patient

will not be able to obtain an abortion or increasing the odds of the very complications the

State asserts it wishes to protect against. This disparity is further exacerbated by the fact

48
that all PPMT centers offer medication abortions, while only two offer procedural

abortions. This “faulty logic” defeats a showing that the law is narrowly tailored to the

compelling interest of a bona fide health risk. See Gryczan, 283 Mont. at 452–53, 942 P.2d

123–24 (rejecting the State’s alleged interest of protecting public health when it rested on

faulty logic and invalid assumptions); see also Planned Parenthood of Mont.,

2024 MT 178, ¶ 37

(citing Weems, ¶ 43) (reasoning the State has not shown a bona fide health risk

when “the evidence overwhelmingly demonstrated delaying access to abortion

care . . . increases the risk of abortion care and could foreclose the option of obtaining an

abortion altogether”).

¶86 The State asserts a compelling interest in preventing coerced abortions. To support

this assertion, the State points to deposition testimony that although providers make the

best effort to ensure video conferencing, sometimes the calls happen via phone, and that

providers “rely on a number of things to assess whether a patient is alone and safe,” among

which is trusting the patient’s statement that they are alone in the room. The record shows

that PPMT follows evidence-based, established protocols for offering telemedicine-based

medical services; part of those protocols ensure patients are not being coerced or pressured;

and the clinicians at PPMT go through extensive training regarding reproductive coercion,

which includes how to talk about the issue with patients but also how to look for signs that

would indicate coercion. That telehealth appointments may occur sometimes off-camera

does not automatically mean coercion is occurring. The record does not show any

evidence, much less clear and compelling evidence, of a risk of coerced abortions. This

does not constitute the clear and compelling evidence of a required bona fide health risk.

49
¶87 Even if the State had provided evidence on the point, completely banning telehealth

medication abortions, requiring multiple mandatory in-person visits, and imposing a

24-hour wait period are not the least restrictive means to reduce any risk of coercion. The

State does not reconcile its position with the evidence highlighted by amici that survivors

of domestic violence may be forced to carry through with their pregnancies to entrap them

in the relationship—a different form of coercion. Deposition testimony showed that an

abortion ban would force people to “remain pregnant against their will” and that abortion

care providers frequently treat patients dealing with intimate partner violence.16 The State

has not shown there is a bona fide health risk to telehealth medication abortions to justify

banning them altogether, requiring in-person visits, or mandating a 24-hour delay. Even if

the State could show coercion as a bona fide health risk, the interests it asserts are not

narrowly tailored to address only those interests. Gryczan,

. These requirements only make obtaining abortion care more difficult, more

inconvenient, and more costly, without a showing that they protect women’s health.

Weems, ¶ 37 (citing Armstrong, ¶ 65) (quotations omitted).

Consent Form

¶88 HB 171 also creates a mandatory informed consent form the provider must fill out

and sign with the patient. Section 50-20-707(1), MCA. The form requires the patient’s

and provider’s signatures, line item initials by the patient, and at least 20 criteria on the

16
Amici curiae organizations dedicated to serving survivors of intimate partner violence (IPV),
also point out that women in Montana suffer IPV at higher rates than the national average and that
Indigenous women in Montana often live on tribal lands and farther from health centers, thus
exacerbating disparities in access to health care.
50
form. Section 50-20-707(4), MCA. These criteria include the following declarations: an

understanding that the “abortion-inducing drug will result in the death of the unborn

child[,]” a list of risks including “hemorrhage, failure to remove all tissue of the unborn

child, which may require an additional procedure, sepsis, sterility, and possible

continuation of pregnancy[,]” “initial studies” on the possibility of abortion reversal, and

“information on the potential ability of qualified medical professionals to reverse the

effects” of abortion and contact information (including a website and phone number).

Section 50-20-707(5), MCA. It requires DPHHS to prepare forms on abortion reversal and

the provider to give the patient these state-prepared materials. Section 50-20-708, MCA.

¶89 First, we identify whether the law infringes on a privacy right. Wiser, ¶ 15.

Armstrong guarantees that an individual may make medical judgments with their

healthcare provider free from government interference. Armstrong, ¶ 14. As discussed

further below, the law mandates that providers tell patients information against their own

medical judgment when discussing medication abortions (which are undisputedly

administered pre-viability). Although HB 171 does not outright ban any form of abortion

or impose onerous in-person requirements, it infringes on the fundamental right to privacy

because it conditions a person’s ability to obtain a pre-viability abortion on receiving

information against a medical provider’s judgment and inserts the State’s voice into an

individual’s medical decisions with their healthcare provider. When state regulation

infringes on the right to privacy, as is the case here, it “must be based on protecting citizens

from actual health risks.” Planned Parenthood of Mont.,

2024 MT 178, ¶ 22

 (citing

Weems, ¶ 37; Armstrong, ¶¶ 58-59). Because it intrudes on the personal autonomy privacy

                                              51
right in healthcare decisions, we turn to whether the State has shown a medically

acknowledged, bona fide health risk.

¶90    The State asserts that HB 171 furthers the compelling interest of ensuring informed

consent. This Court recognizes that the Legislature has enacted laws to promote informed

consent in the medical field. For example, § 50-12-105, MCA, requires written informed

consent when a patient is seeking treatment for a chronic or terminal illness from an

investigational drug. This statutory example is markedly different from the informed

consent statutes at issue. It does not provide specific mandates about what advice the

provider must include. It instead is “based on the treating health care provider’s knowledge

of the proposed treatment in conjunction with an awareness of the patient’s condition.”

Section 50-12-105(3)(b), MCA.        As recognized in medical malpractice cases, the

“disclosures required to obtain an informed consent are a matter of medical judgment.”

Howard v. Replogle,

2019 MT 244

, ¶ 17,

397 Mont. 379

450 P.3d 866

 (citing Collins v.

Itoh,

160 Mont. 461, 467-68

503 P.2d 36, 40

(1972)). The treatment decisions a patient

makes contemplate “individualized care tailored to the needs of each patient based on the

exercise of professional medical judgment and informed consent.” Cross, ¶ 37.

¶91 In deposition testimony from the Attorney General’s M. R. Civ. P. 30(b)(6)

designee, the office stated that it did not possess any evidence that patients in Montana are

not provided informed consent to abortions. The record establishes that PPMT has a robust

informed consent process to make sure the patient understands what an abortion entails,

assess the patient’s decision around abortion, discuss alternatives to abortion, risks,

benefits, and additional support needs, screen for coercion or uncertainty, and ensure that

52
patients are confident in their decisions—like providers do for other medical interventions.

This process includes educational materials, printed forms, and conversations between the

patient and provider, which include questioning, counseling, and risk assessment. The

conversation is not based on one specific question but counseling and additional questions

tailored to the patient’s responses. The District Court correctly reasoned that there is no

evidence that “patients seeking medication abortions are unable to provide informed

consent.” The State has not established a bona fide health risk that the mandated consent

forms would alleviate.

¶92 Even if the State could show by clear and compelling evidence that informed

consent is not already provided by treating medical professionals, the State has not shown

how the form is narrowly tailored to achieve only the furtherance of informed consent.

Gryczan,

. The bill mandates that patients be told about

abortion reversal, which is the theory that once a person begins a medication abortion, they

potentially can reverse it by taking progesterone. The District Court reasoned that the

record does not show abortion reversal is even possible because the evidence on

reversibility is limited to a halted trial, “an article that the State’s expert cites but did not

read,” and a non-randomized case series. The record shows that the State’s expert, Dr.

Ingrid Skop, conceded that the case series could not demonstrate that an intervention (here,

high levels of progesterone) caused a particular outcome (reversing a medication abortion).

¶93 Dr. Dickman testified that he would never provide information about abortion

reversal because it has not been shown to be safe and effective, and discussing safe and

effective care options is critical. Dr. McNicholas testified the data suggests abortion

53
reversal is not safe and effective but also creates serious concerns about the patient’s ability

to engage in the informed consent process. She testified that PPMT makes all efforts to

ensure people have made a solid decision at the time they initiate the abortion. To suggest

that the patient can reverse the abortion undermines the informed consent process, which

works to bring about a high degree of certainty in a patient’s decision to have an abortion.

It undermines informed consent if a patient initiates the procedures under the false belief

that they may be able to reverse the abortion later. The National Academies Study similarly

stated there is not reliable evidence or sufficient data to conclude that progesterone

treatment is effective.

¶94 The form mandates that patients be told about a list of “complications” with

medication abortions—including, for example, breast cancer, which the State’s own

experts acknowledge is not a risk with medication abortions. The National Academies

Study stated that “legally requiring providers to inform women about risks that are not

supported and even invalidated by scientific research violates informed consent.” It further

concluded that informing patients that abortion increases the risk of breast cancer, mental

health disorders, difficulties in having a successful pregnancy, or the possibility of abortion

reversal “is not supported by research that meets scientific standards.”

¶95 The State’s mandated language that the procedure “ends in the death of the unborn

child” substitutes the government’s determination about what abortion means for an

individualized assessment by the medical professional and the patient. Just as “consenting

adults expect that neither the [S]tate nor their neighbors will be co-habitants of their

bedrooms[,]” medical patients also expect that the State will not be a co-participant in their

54
private conversations with their doctors absent a clearly demonstrated, compelling interest.

Gryczan v. State, 283 Mont. at 450,

; accord Armstrong, ¶ 59 (reasoning

that absent a bona fide health risk, the Legislature does not have a “legitimate presence nor

voice in the patient/health care provider relationship”).

¶96    There is a difference between the State simply requiring that a conversation happen

to ensure informed consent based upon “the education, training, experience, advice, and

professional integrity of the health care provider” and the State dictating what must be said

in that conversation.    Armstrong, ¶ 58.     The District Court correctly reasoned that

“[c]onstruing [this] evidence in the light most favorable to the State, it is clear that no

medical consensus exists to justify invading the patient-provider relationship in this way

with forced, unsubstantiated medical advice.” The requirements of the informed consent

form thus unconstitutionally infringe the right to privacy.

Free Speech Claim

¶97    Article II, Section 7, of the Montana Constitution states: “No law shall be passed

impairing freedom of speech or expression.” “[T]he government may not regulate speech

based on its substantive content or the message it conveys.” Denke v. Shoemaker,

2008 MT 418, ¶ 47

347 Mont. 322

198 P.3d 284

 (citation omitted); Griffith v. Butte Sch. Dist. No.

1,

2010 MT 246, ¶ 46

358 Mont. 193

244 P.3d 321

. A law is content-based if “the law

on its face[] draws distinctions based on the message a speaker conveys, such as the topic

discussed or the idea or message expressed.” State v. Lamoureux,

2021 MT 94, ¶ 21

404 Mont. 61

485 P.3d 192

 (citations and internal quotations omitted). Such laws are

presumptively invalid. Lamoureux, ¶ 21. Viewpoint discrimination is “an egregious form

                                             55
of content discrimination” and occurs when the “government, in the realm of private speech

and expression, favor[s] one speaker over another.”       Denke, ¶ 47 (citation omitted);

accord Griffith, ¶ 46. “[T]he government must abstain from regulating speech when the

specific motivating ideology or the opinion or perspective of the speaker is the rationale

for the restriction.” Denke, ¶ 47 (citations and internal quotations omitted). Relying on

Denke, the District Court concluded that HB 171 constituted impermissible content-based

restriction and viewpoint discrimination.

¶98    The statute at issue here does not necessarily prohibit a provider’s speech;

compelled speech, though, also is protected by free speech principles. “[T]he choice to

speak includes within it the choice of what not to say.” Pac. Gas & Elec. Co. v. Pub. Utils.

Comm'n of Cal.,

475 U.S. 1, 16

106 S. Ct. 903, 912

(1986). Forcing medical providers to

give medical advice that they disagree with—like the safety and efficacy of abortion

reversal—is a form of compelled speech triggering protections under Article II, Section 7,

of the Montana Constitution.

¶99 PPMT asserts that patients may mistakenly understand the consent form to indicate

DPHHS’s and their provider’s approval of abortion reversal. In deposition testimony,

DPHHS acknowledged that it did not verify the accuracy of the website’s contents. The

regulations at issue control what the providers say (thus indicating content-based

restrictions), but more egregiously favor one viewpoint over another—namely, the

viewpoint that abortion reversal is safe and possible over the judgments and viewpoints of

providers that it is unsafe, ineffective, and undermines informed consent.

56
¶100 The District Court correctly pointed out that the statute is “conspicuously absent of

any requirement that providers discuss the potential risk of carrying a pregnancy to term.”

Additionally, the regulation would apply only to health centers that provide medication

abortions, thus further implicating the State’s favoring of one speaker over the other.

See Denke, ¶ 47. This is viewpoint discrimination by the State. The efficacy of abortion

reversal is controverted within the scientific community. Because the statute constitutes

impermissible viewpoint discrimination, it is subject to strict scrutiny. See Denke, ¶ 47.

The Dissent, ¶ 166, inaccurately states that “HB 171 does not require providers to give

medical advice that they disagree with.” We highlighted above the deposition testimony

that the provider would “never provide information about abortion reversal.” The Dissent

posits, though, that the provider could just include additional information to reflect their

own judgments. Dissent, ¶ 166. But forcing providers to give controversial medical advice

against their judgment (and that of the medical community) or to resort to giving potentially

conflicting information to their patients denies providers the “choice of what not to say[,[”

Pac. Gas & Elec. Co.,

475 U.S. at 16

, 106 S. Ct. at 912, and is not the least restrictive way

for the State to advance its asserted goals.

Credentialing Requirements

¶101 The law further requires that the provider possess a broad set of credentials (or have

a signed contract with a credentialed provider) and be able to handle a list of 29 enumerated

complications, including renal failure, metabolic disorder, subsequent development of




                                               57
breast cancer, coma, as well as “any other adverse event.” Sections 50-20-703(5), -705(2),

MCA.

¶102 Analogizing to Weems, the District Court reasoned that the law requires “such

extensive    credentialling that” medication           abortions    would be        “abolished     by

impracticality.” On appeal, the State asserts that HB 171 advances maternal health and the

integrity of the medical profession by ensuring that practitioners are competent to address

complications that may result.17

¶103 We agree that Weems is on point. The statute we considered in that case prevented

advanced practice registered nurses (APRNs) from performing abortions. Weems, ¶ 1.

This Court acknowledged the State’s police power to regulate for the health and safety of

its citizens and reasoned that the “Legislature does not lose its authority to legislate in areas

that have been delegated to the oversight of a board.” Weems, ¶ 40. Ultimately, the statutes

at issue in Weems were unconstitutional because, despite the Legislature’s police power,

the statute “precluded qualified health care providers from performing abortion care” (thus



17
   The State asserts that material facts remain in dispute because the District Court order overstated
the credentialing requirements of HB 171, which, according to the State, “merely requires abortion
providers to be competent to handle complications themselves or have an arrangement with an
associated medical provider who can.” The State goes on to acknowledge that some of the listed
complications “may manifest months or years after an abortion and may be treated by another
competent provider.” Interpretation of statutory language is a question of law, not fact. Rairdan
v. State,

2021 MT 247, ¶ 6

405 Mont. 467

495 P.3d 1050

. HB 171 clearly requires that the
abortion provider is credentialed and competent to handle complications or has a “signed contract
with an associated medical practitioner who is credentialed to handle complications”[;] that the
provider give the contact information of the associated medical practitioner to the patient; and that
the provider be able to produce the signed contract on demand by the patient or department.
Section 50-20-705(2), MCA. HB 171 defines complications as 29 potential events and “any other
adverse event.” Section 50-20-703(5), MCA. We review for correctness the District Court’s
interpretation of HB 171’s credentialing requirements, which is a question of law. Rairdan, ¶ 6.
58
infringing on the fundamental right to privacy), and the State failed to demonstrate that

permitting APRNs to provide abortions presented a medically acknowledged, bona fide

health risk. Weems, ¶¶ 43, 51.

¶104 Under step one, HB 171’s credentialing requirements infringe on the right to privacy

because the requirements dictate who can provide a pre-viability medication abortion. The

State’s expert conceded in deposition testimony that there is “no way any physician in the

universe can manage every one of those complications by themselves.” Because the law

affects only pre-viability abortions (PPMT only provides medication abortions up to 11

weeks) and “preclude[s] qualified health care providers from performing abortion care,” it

infringes on the fundamental right of procreative autonomy protected by the right to

privacy. Weems, ¶ 43.

¶105 Under step two in our analysis, PPMT also is correct that the State has not shown a

bona fide health risk in the current credentialing requirements. The State acknowledged

on appeal that PPMT already ensures that their providers can provide surgical interventions

in cases of incomplete abortion or severe bleeding or have made plans to ensure patient

access to care through other medical facilities.

¶106 As we reasoned in Weems:

[L]imiting the pool of qualified abortion providers would significantly
interfere with a patient’s right of privacy because of significant cost and
travel required to access a provider. The scarcity of providers in Montana
increases the likelihood patients will experience delays accessing care,
forcing them to remain pregnant until they can seek a later-term abortion,
which can result in comparatively higher risk, greater expenses, and even
ineligibility for medication abortion as pregnancy advances.

59
Weems, ¶ 50. The State’s own arguments show that the credentialing requirements do not

appear to achieve any interest not already served by PPMT procedures but instead

“preclude qualified health care providers” from providing medication abortions and thus

fail strict scrutiny. Weems, ¶ 43.

Reporting requirements

¶107 Finally, HB 171 imposes various reporting requirements to DPHHS, including the

identification of the provider who provided the medication abortion, the patient’s county

of residence, age, race, and number of previous pregnancies, number of live births, and

number of previous abortions of the pregnant women. Section 50-20-709, MCA.

¶108 The District Court reasoned the reporting requirements appear to serve no

government purpose and do not mitigate a bona fide health risk. DPHHS provided

deposition testimony that it already collects data related to abortions in Montana and had

no evidence that the additional information required by HB 171 would be necessary to

promote the health and safety of women by adding to the sum of medical and public health

knowledge.

¶109 The State disputes that HB 171 “creates a new privacy concern[.]”18 It argues that

DPHHS does not provide individual data to other entities and PPMT already collects and

reports “patient data to DPHHS, including the name of the patient and provider and the

date of abortion.”

18
The State argues that whether it creates a new privacy concern is a disputed material fact. “The
constitutionality of a statute is a question of law” that we review for correctness. Williams, ¶ 23.
60
¶110 It is undisputed that HB 171 imposes additional reporting requirements. The record

shows that the current practice is for PPMT to report data to DPHHS, including patient and

provider information and names, the type of abortion, and complications. From these

forms, the State reports only aggregate data on abortion care. The State’s general argument

that PPMT already complies with certain reporting requirements does not address the

concern that the statute now would authorize the non-aggregated demographic information

to be subject to public disclosure, § 50-20-709(8), MCA, which creates new privacy

concerns.

¶111 “[P]rivacy interests concerning a person’s medical information implicate Article II,

Section 10, of the Montana Constitution[.]” Wenger, ¶ 28 (quoting Robinson v. State

Comp. Mut. Ins. Fund,

2018 MT 259, ¶ 19

393 Mont. 178

430 P.3d 69

). “[T]he Montana

Legislature has recognized [that] ‘health care information is personal and sensitive

information that if improperly used or released may do significant harm to a patient’s

interests in privacy and health care or other interests.’” Wenger, ¶ 28 (quoting Nelson,

283 Mont. at 242

941 P.2d at 448

; citing § 50-16-502(1), MCA). Contrary to the State’s

assertion, making public certain demographic information (such as the age, race, county,

and number of children of the patient) does implicate a privacy right. In part, there is a risk

that the patient could be identified based on the demographic information, particularly in

small communities. In other words, the reporting requirements violate the fundamental

privacy right that procreative autonomy decisions containing potentially identifiable

information will not be subject to public disclosure. See Wenger, ¶ 28; see also Armstrong,



                                              61
¶ 53 (“Few matters more directly implicate personal autonomy and individual privacy than

medical judgments affecting one’s bodily integrity and health.”).

¶112 Given the clear implication on a patient’s privacy right, the State must show a

compelling interest. The District Court was correct in reasoning that these additional

requirements do not mitigate a bona fide health risk, and in fact, potentially “harm patient

safety and public health.” This is distinguishable from other examples when reporting

requirements for medical providers would advance a compelling interest.             Planned

Parenthood of Mont.,

2024 MT 178, ¶¶ 34-35

 (reasoning that mandatory reporting laws

requiring medical providers to report sexual abuse “advance the State’s compelling interest

of protecting minors from victimization”).        The State has not shown the reporting

requirements are narrowly tailored to protect a class of patients or the public from a bona

fide health risk.

Severability

¶113 We construe statutes to avoid “unconstitutional interpretation whenever possible.”

Williams, ¶ 64 (citing State v. Samples,

2008 MT 416, ¶ 14

347 Mont. 292

198 P.3d 803

).

If a law contains unconstitutional provisions, we “examine the legislation to determine if

there is a severability clause[,]” which indicates the “drafters desired a policy of judicial

severability to apply to the enactment.” Williams, ¶ 64 (citing Finke v. State,

2003 MT 48

,

¶¶ 25-26,

314 Mont. 314

65 P.3d 576

). “When unconstitutional provisions are severed,

the remainder of the statute must be complete . . . and capable of being executed in

accordance with the apparent legislative intent.” Williams, ¶ 64 (citing Finke, ¶ 26). This

62
Court may strike only the unconstitutional provisions if it “will not frustrate the purpose or

disrupt the integrity of the law.” Williams, ¶ 64 (citations omitted).

¶114 HB 171 is the only one of the challenged bills that contains a severability clause.

2021 Mont. Laws ch. 309, § 16. The District Court determined that portions of

§ 50-20-703, MCA, and all of §§ 50-20-705, and -707 through -711, MCA, are void. The

State does not dispute the District Court’s severability determinations on appeal. Based on

the analysis above, we agree with that determination, and additionally conclude that

§ 50-20-704, MCA (the in-person requirement), is void. Like the District Court reasoned,

the remaining provisions “frustrate the purpose” and “disrupt the integrity of the law.”

Williams, ¶ 64. HB 171 is thus unconstitutional in its entirety.

Dispute of Material Facts

¶115 For HB 171, the State argues that disputed material facts include: risks of coercion;

whether some medical procedures require in-person office visits (citing the rescission of

allowances for other telehealth medicine from the COVID-19 pandemic); and PPMT

witness testimony that patients already may have to wait longer than 24 hours for

appointments. As already discussed, the State’s allegations over whether coercion is

occurring are speculative and thus do not present a genuine dispute of material fact.

See Stanton v. Wells Fargo Bank Mont., N.A.,

2007 MT 22, ¶ 29

335 Mont. 384

152 P.3d 115

. That other medical procedures may require in-person visits or PPMT patients may

face wait times due to other facts is immaterial because they do not affect the relevant

substantive law—namely, whether telehealth medication abortions can be safely provided



                                             63
or a justification exists for adding additional barriers to the State’s privacy infringement.

See DeVoe,

281 Mont. at 366

935 P.2d at 263

.

¶116 The State also argues the efficacy of abortion reversal is still disputed, and this

would show a lack of informed consent. Because no medical consensus exists regarding

its efficacy, the State’s evidence regarding abortion reversal does not change the outcome:

the State has not shown by clear and convincing evidence a “medically acknowledged”

bona fide health risk, grounded in the “collective professional judgment, knowledge and

experience of the medical community” to justify forcing PPMT providers to advise on a

treatment. Armstrong, ¶ 62; Weems, ¶ 47; Planned Parenthood of Mont.,

2024 MT 228, ¶ 22

. Genuine issues of material fact are not in dispute regarding HB 171, and the District

Court did not err in granting summary judgment.

¶117 3. Does a law mandating that providers offer patients the opportunity to view an
ultrasound and listen to a fetal heart tone violate Montana’s constitutional
guarantees of individual privacy?

¶118 HB 140 requires providers to offer patients the opportunity to view an active

ultrasound, an ultrasound image, and to listen to a fetal heart tone (if audible) prior to

obtaining an abortion. Section 50-20-113(1), MCA. It provides exceptions to save the

patient’s life, when there are risks of irreversible injury to the patient, or to remove an

ectopic pregnancy. Section 50-20-113(2), MCA. The patient must sign a form that

confirms they were informed of the opportunity and indicate whether they chose to view

the ultrasound or listen to the fetal heart tone. Section 50-20-113(3), MCA. The form must

be retained in the patient’s medical record but is not sent to DPHHS. Section 50-20-113(4),

MCA. Providers in violation face civil penalties. Section 50-20-113(5), MCA.

64
¶119 The District Court reasoned there was no evidence that patients in Montana lack

informed consent in abortion treatment, ultrasounds are usually offered by PPMT, and the

mandates do not correspond to a bona fide health risk. The court stated it was “left with

the strong impression that the law aims to advance the ulterior motive of discouraging

abortion,” which is unacceptable under the law.

¶120 On appeal, the State argues that HB 140 does not violate the right to privacy but

instead furthers informed consent and “provides knowledge about any potential

complications that may arise.” It asserts that “the benefit to the patient for an optional

service easily outweighs the minimal burden.” PPMT counters that HB 140 interferes with

the provider-patient relationship “by forcing providers, regardless of their clinical

judgment,” to make these offers. PPMT maintains that the law is not narrowly tailored

because there is no evidence informed consent is not provided in abortion care.

¶121 We first ask whether HB 140 infringes on the right to privacy. Wiser, ¶ 15. The

broader right to privacy guaranteed by Armstrong is the ability to make medical decisions

in conjunction with a health care provider. Armstrong, ¶ 62; Cross, ¶ 28; Wiser, ¶ 15;

Weems, ¶ 36. We do not adopt the State’s assertion that HB 140 does not infringe a privacy

right simply because it presents the option, which the patient is free to decline. PPMT

argued there are times when offering an ultrasound or the option to listen to the fetal heart

tone would be contraindicated—such as in cases of rape or incest—and the state-created

form uses stigmatizing language (the form mandates the person acknowledge they were

given the opportunity to view the ultrasound and listen to the fetal heart tone of the unborn

child). HB 140 does not simply leave the decisions to the patient and provider. Dissent,

65
¶ 171. It instead mandates that the provider offer the options in the first place. Like the

consent form in HB 171, HB 140 infringes the right to privacy because it inserts the State’s

voice and judgment into the medical room, replacing the qualified medical provider’s

judgment with that of the State and impacting a patient’s personal autonomy right to make

medical decisions with the health care provider—respectively, the decision whether to get

an ultrasound or listen to a fetal heart tone, and the decision whether to offer it in the first

place. Armstrong, ¶ 59; Cross, ¶ 32. The State must show HB 140 is narrowly tailored to

address a compelling interest of a medically acknowledged bona fide health risk.

Armstrong, ¶ 34; Weems, ¶ 37.

¶122 The State asserts its compelling interest is furthering informed consent. Our

analysis here mirrors that in HB 171: the record shows that PPMT engages in an

evidence-based practice to ensure informed consent and certainty in the decision to obtain

an abortion and tailors questions and conversation to each patient. We do not accept the

State’s argument that the offer is designed to reduce the risk of ruling out dangerous

conditions, such as an ectopic pregnancy, or to help determine whether a medication

abortion or dilation and evacuation abortion is appropriate by confirming the gestational

age. As analyzed above, the record shows that abortion care is safe. More so, PPMT cited

research studying medication abortion patients screened for ectopic pregnancies via

telemedicine, which found no statistically significant difference in the rate of ectopic

pregnancies between ultrasound and no-ultrasound groups. PPMT providers testified

regarding their procedures to determine an ectopic pregnancy and gestational age. Whether

an ultrasound is required or should be offered falls within the provider’s judgment. The

66
State cannot use “rul[ing] out dangerous conditions” as a bona fide health risk to justify

this mandate, as there is not clear and convincing evidence to support it. See Weems, ¶ 46.

¶123 The State’s argument that providers already offer ultrasounds and make efforts to

provide fetal heart tones similarly does not help its argument. Increasing “a mother’s

instinct of protection” is not a medically acknowledged, bona fide health risk. Dissent,

¶ 171. The District Court correctly reasoned the decision is “best left to a patient and

provider, relying on the provider’s best medical judgment, not to a rigid statutory

requirement.” The State has not shown that bona fide health risks are present to justify the

mandate to offer the patient these options in the manner required.

Dispute of Material Facts

¶124 On HB 140, the State asserts there are factual disputes because “abortion always

ends an individual prenatal human life,” and describes the dilation and evacuation

procedure. These facts are not material because they are not part of the substantive law

governing the claim. DeVoe,

281 Mont. at 366

935 P.2d at 263

. The State’s interest in

fetal life is not present until after viability, and it is unclear how describing the dilation and

evacuation procedure—which the record shows to be safe—is relevant to whether requiring

the offer of an ultrasound unconstitutionally infringes on a privacy right.

¶125 The State also asserts there are factual disputes about higher risks in the years

following an abortion of negative mental and physical health outcomes. Once again, we

note that the record shows that abortions are safe; for that reason, abortion care cannot be

used to justify a bona fide health risk. Weems, ¶ 48. Even taking as true the State’s

allegations that some patients who have an abortion were at higher risk of mental health

                                               67
issues following the procedure, the State fails to show how this factual dispute justifies

mandating that doctors offer patients the opportunity to view ultrasounds and listen to fetal

heart tones. See Roe v. Kornder-Owen,

282 Mont. 287, 293

937 P.2d 39, 43

 (1997)

(whether a party was speeding would only be material if there were evidence it contributed

to the parties’ collision). Genuine issues of material fact are not in dispute regarding HB

140, and the District Court did not err in granting summary judgment.

¶126 The foregoing conclusions being determinative of the State’s challenges on appeal,

we do not address any remaining arguments.

                                     CONCLUSION

¶127 Reproductive decisions are among the most intimate that a person may make in their

lifetime. This includes the decision to obtain a pre-viability abortion and the decision to

carry a pregnancy to term—both of which carry widely varying personal considerations,

decisions, hardships, and desires that are deeply unique and personal to each individual in

Montana, and both of which are protected under the state constitutional right to privacy.

We do not take lightly the varying beliefs that fuel the disputes surrounding these issues.

The case before us follows decades of precedent that the Montana Constitution’s right to

privacy guarantees, absent a compelling state interest, “the right to be let alone”—which

long has been recognized as one of the most important rights. Gryczan,