The release of the proposed draft of the United States Supreme Court’s opinion overturning Roe v. Wade was, to be sure, a spoiler alert of sorts. For one thing, appellate court opinions are not supposed to be leaked. The process of opinion writing is tedious: Proposed drafts are circulated to the members of the court; memos are exchanged; jurists weigh in with their comments, thoughts and suggested language tweaks; there may be some intra-court lobbying between judges; dissents and concurrences are, likewise, circulated; and eventually judges’ opinions are solidified and will coalesce into a majority and, possibly, formal dissents and concurrences. The process is secret until the opinion’s author sings the final aria and is joined, in turn, by the chorus of dissents and concurrences.

Ironically, while in the process of trashing women’s privacy rights, the Supreme Court is miffed that its privacy rights were violated.

In any event, the good news is that the leaked proposed opinion will likely not be the final opinion. The bad news, however, is that whatever the final opinion looks like, the court’s conservative majority will probably overturn Roe, leaving decisions on abortion to be made by each state.

And there’s bad news and good news in that, too.

The obvious bad news is that states like Texas have openly declared war on women who, for whatever their personal reasons, have decided to terminate their pre-viability pregnancies. Indeed, conservative red states are frothing at the mouth, trying to outdo each other in adopting the most draconian anti-abortion statutes in anticipation of what they expect the Supreme Court’s final decision will say. 

And what of the women who will likely lose their access to abortion services; who will be forced to terminate unwanted pregnancies illegally, often at the hands of butchers and quacks; who will be the victims of vigilante justice in some states; and who will have their reproductive choices dictated by males? Make no mistake, these women will be the victims of the Supreme Court’s ultimate decision to throw Roe under the bus, to adopt the platform of the Republican Party and the doctrines of the religious right. 

America’s 50-year-running abortion war will have come to an ignominious end. And the Supreme Court will have come in at the end of the war to shoot the wounded women.

And the good news? It is a well-settled principle of constitutional law that, while a state may not provide less protection of a federal constitutional right, it may provide greater protection under its own constitution. Roe was grounded in the federal constitutional right to equal protection and due process of law.

However, in Armstrong v. State (1999 MT 261) the Montana Supreme Court turned to the Montana Constitution instead of to the federal Constitution.  

Montanans are guaranteed the fundamental right of individual privacy under Article II, Section 10, of our state constitution, which states: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Fundamental constitutional rights are the most stringently protected rights in our Constitution. Legislation infringing such a right is reviewed under strict-scrutiny analysis, meaning that the legislation must be justified by a compelling state interest and must be narrowly tailored to effectuate only that compelling interest.

With this standard in mind, the state supreme court carefully considered the history of the right of individual privacy and determined this right guaranteed that a woman was entitled to make medical judgments affecting her bodily integrity and health—including obtaining a pre-viability abortion—in partnership with her chosen health care provider free from government interference.

Importantly, the Armstrong decision was grounded independently and solely in the right of privacy and other fundamental rights protected in the Montana Constitution, and not in federal constitutional law. In short, Montana provides greater protection for women’s right of procreative autonomy—the right to choose—than does the federal Constitution.

Thus, regardless of what happens to Roe, Montana women will continue to be guaranteed their constitutional privacy right to seek abortion services based on the medical model, free from male-driven partisan and religious meddling.

At least for the foreseeable future. 

James C. Nelson is a retired Montana Supreme Court justice. He lives in Helena.

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