Freedom of Choice? 

State senator proposes pro-life constitutional amendment

Abortion-rights activists are rallying their troops over a proposed constitutional amendment that would exclude abortion from Montana’s expansive right to privacy.

The amendment, still in draft form, is being advanced by state Sen. Duane Grimes, a Clancy Republican and staunch anti-abortion advocate. He is expected to introduce the proposal for consideration in the 2001 Legislature, which starts in January.

Grimes says the 1972 Montana Constitution, one of the most progressive in the nation, needs to be amended because “liberal” state courts have repeatedly stymied efforts by anti-choice legislators to limit the practice of abortion within the state. Several of the recent legal decisions have been rooted in the Constitution’s Article II, Section 10, which promises that 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.”

The Montana Supreme Court has repeatedly said that a compelling state interest does not exist to restrict a woman’s right to choose a pre-viability abortion, which Grimes and other anti-choice leaders have attempted to abolish. Viability outside the womb is generally considered to begin at the third trimester of pregnancy. As in most of the nation, post-viability abortions are already banned in Montana unless they’re necessary to protect a woman’s life or the “irreversible impairment of a major bodily function.”

“There’s going to be some action taken this session,” says Grimes, who adds that he’s not yet sure of the final form his action will take. “Montanans’ voices just aren’t being heard on the issue of abortion,” he says. Once finalized, Grimes promises, the legislation “won’t be overly broad and will be well thought out.”

If 100 lawmakers in the 150-member Legislature approve the proposed amendment, it will be placed on the general election ballot next fall. If voters favor it with a simple majority, the amendment will go into effect without the governor’s signature.

“If it were to pass, it would be devastating to women in Montana,” says Wayne Chamberlain, executive director of Missoula’s Blue Mountain Clinic, which provides abortions along with an array of other health services. “It would be like a big step back to the Stone Age. I find it incredulous that any man would want to step into that arena and say, ‘I know what’s best for you.’ What an ego.”

“It makes good sense to me to give the people a vote,” Grimes counters. “I think you’d find the majority opposes abortion, especially as it’s being used as a wholesale method of birth control. I think you’d find that overwhelmingly passed by Montanans.” In recent years, state courts have declared unconstitutional a Montana prohibition on certified physician assistants performing abortions, a law mandating a 24-hour waiting period before an abortion could be performed, a so-called “partial-birth” abortion bill, and a parental-notification law, which was sponsored by Grimes. All of the rulings have intricate ties to the U.S. Supreme Court’s landmark 1973 Roe v. Wade decision, which invalidated state abortion laws that violated a women’s right to privacy. Current federal case law dictates that pre-viability abortions must be allowed, and restrictions on their use must not place an “undue burden” on a woman’s right to choose.

“That, to me, is an outrage,” Grimes says of the state rulings. “I think something has to be done in our system to make a correction. Every piece of good anti-abortion legislation has been thrown out. That’s not right.”

Stacey Anderson, director of the Montana chapter of the National Abortion and Reproduction Rights Action League (NARAL), says the proposed amendment would undermine the rights of Montana women and would set the stage for a state ban on abortions if Roe v. Wade is overturned, as some activists fear if Texas Gov. George W. Bush occupies the White House.

“I think the short-term effect of weakening our Constitution is that we wouldn’t have the grounds for challenging these bills coming down from the Legislature,” she says. “Long-term, I think it makes it even more dangerous for Montanans. It’s scary for us, but I disagree with Mr. Grimes that Montanans would vote to end abortion in our state. My sense is that most Montanans are moderate on the issue.”

“That’s like taking out freedom of speech or due process,” adds Judy Smith, executive director of the Missoula-based Women’s Opportunity and Resource Development program and a co-founder of the Blue Mountain Clinic. “That’s an amazing, fundamental thing. I would be surprised if Mr. Grimes is able to do this. I think privacy has an incredible, strong tradition in Montana. You’re basically discouraging women from making a decision about their own health and future.”

“If I were a woman in Montana, I’d be furious,” adds Chamberlain. “Talk about unequal protection under the law.”

But according to Steven Ertelt, head of the Montana Right to Life Association, the state’s constitutional privacy clause was created for private property owners and other similarly situated residents who “wanted to be left alone.”

“It was not to say a woman can kill an unborn child at any point in her pregnancy,” he contends, adding that his group has not yet endorsed Grimes’ proposal. “We’re still figuring out our strategy for the legislative session. Sen. Grimes is a friend of our organization and we’ll be working in concert with him and others.”

“We’re preparing for it,” says NARAL’s Anderson. The state’s privacy clause “is the strongest in the nation, and it’s not something you want to mess with. I think they underestimate the pro-choice crowd in Montana. For 50 percent of Montana’s population, that is a big issue.”

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