The Last, Best Defense 

How did Montana’s pro-choice lobby convince lawmakers to protect reproductive rights? By sticking to the facts.

It’s springtime in Montana in an odd-numbered year, a time when there is no rarer sight in Helena than a progressive lobbyist with something left to smile about. Or so you would assume, based on the news emanating from the capital all winter long.

Energy? Education? The environment? They all tanked hard in the 57th Legislative Assembly. So why are the three women who are Montana’s pro-choice lobby not just smiling, but beaming?

“This is the first time since 1993 that an anti-choice bill has not landed before an anti-choice governor,” says Stacey Anderson, executive director of the Montana chapter of the National Abortion and Reproductive Rights Action League.

Not a big deal? Then consider this: In a typical legislative session, the pro-choice lobby has two, possibly three bills to fend off. This year they had 11 bills coming before a Republican-led House of Representatives (57 Republicans to 43 Democrats) and a Republican-led Senate (31 Republicans to 19 Democrats).

Back in November, when Anderson, Beth Brenneman, attorney for the American Civil Liberties Union (ACLU) of Montana, and JJ Straight, public affairs director for InterMountain Planned Parenthood in Missoula, began sketching out their defensive play book, the political landscape looked forbidding. Nationally, the coronation was underway for George W. Bush, who described himself as “the most pro-life president ever.” Montana voters had just elected Gov. Judy Martz and Rep. Denny Rehberg, two ardent pro-life candidates. Only Democrat Mike McGrath offered the Reproductive Rights Coalition much hope, and the Republican opponent he defeated, Jim Rice, would soon be appointed to the state Supreme Court with virtually no opposition. At this point, their strategy included deciding which testimony needed to be read into the public record for the time when those laws were eventually challenged in court.

Then by mid-February, the focus had shifted from simple damage control to the possibility of shutting down much of the pro-life agenda. By March 28, the last of 11 pro-life bills had been defeated.

How did they pull it off? That’s what a lot of other pro-choice activists in the “red zone” of the intermountain West want to know. Already, Anderson, Brenneman and Straight have been asked to show them how it was done.

In large part, it was the numbers that told the story this session. The fact is, in most counties of Montana, reproductive rights are as restricted as they were before Roe v. Wade. Out of 56 counties, only five (soon-to-be four) have abortion providers. And at a time when teen pregnancy rates nationally have dropped to historic lows, Montana ranks ninth for teen pregnancy, with a rate of 43 pregnancies per 1,000 teenaged girls.

Some of the success of the pro-choice lobby was a matter of circumstance, as legislators were pulling their hair out over more pressing issues. Sen. Duane Grimes (R-Clancy), a five-term legislator and strident anti-abortion lawmaker, shoulders some of the blame himself.

“In a lot of ways I don’t feel like I personally gave it my best effort. I was spread pretty thin with a lot of other bills,” says Grimes. “I probably overestimated the amount of support I would have without any prior work with the legislators.”

In addition, he says some of the failure of the right-to-life agenda this session may be attributed to battle fatigue on the part of conservative lawmakers.

“Honestly , it may reflect a little bit of weariness with these issues, because it seems like we fought these battles, we won them before and now we’ve lost them in the courts,” says Grimes. “I sensed almost a gasp of exasperation from people who felt like, ‘We’ve already dealt with this before.’”

Steven Ertelt, executive director of the Montana Right to Life, is harsher in his criticism, accusing the pro-choice lobby of waging “a massive misinformation campaign” all session long.

Whether it was misinformation or hard facts will no doubt depend upon your personal take on what is life and what is choice. Either way, it was a textbook example of effective lobbying. They put in 18-hour work days. They pored over transcripts from prior years’ hearings to see which messages worked and which did not. They never overlooked a single pro-choice vote or took one for granted. They made sure everyone on their side had talking points, and didn’t waste legislators’ time by repeating testimony.

In short, they made the issues clear, they kept it simple, and they stuck to the facts.

“We raised the level of discourse on this issue to a level where it hasn’t been before,” says Straight. “People really listened to us. We were never the hysterical ‘abortion-on-demand under all circumstances’ activists that we’ve been painted as before.”

“A tremendous amount of credit has to go to the pro-choice lobbyists, who were extremely effective at bringing the issues to common-sense reality and what they mean to people in real life,” says Sen. Mike Halligan (D-Missoula). “That is what’s effective amongst legislators. Don’t give me extreme examples. Give me how this affects the average man, woman and child in my district.”

Drugstore Cowboys

The frontline in the battle over life and choice can be difficult to pinpoint in the ever-shifting sands of new medical advances. When the U.S. Food and Drug Administration approved Mifeprex (formally known as RU-486) last year, the decision landed like a hand grenade in the Right-to-Life camp. Suddenly, the line of battle on the abortion debate had moved from the clinic sidewalk to the doctor’s prescription pad. The result, both in Montana and nationally, has been an effort to interject pharmacists into the confidentiality of the doctor-patient relationship.

Forty-five states, including Montana, already have laws that allow certain medical personnel and medical facilities to opt out of performing abortions on the basis of moral or religious beliefs. This year the Montana Right-to-Life argued that that right should be extended to pharmacists as well. Rep. Bob Davies (R-Bozeman) sponsored HB 413, also known as the “Pharmacist Conscience Clause,” to allow pharmacists to refuse to fill any prescriptions that they have a moral or religious objection to. (Phone calls to Davies’ home and business for this story went unanswered.)

“Pharmacists feel that certain drugs are abortion drugs, and because of their position on life issues, they’re conscience tells them, ‘Look, I don’t want to be a part of the abortion process,’” says Ertelt. This bill isn’t just about abortion medication, he explains, but any medication that can be used to end a life, such as those used for physician-assisted suicide.

The problem, argued pro-choice activists, is that this legislation blurs the lines between abortion and contraception, and suggests that emergency contraceptives (or “morning after” pills) are just another form of abortion. As Anderson points out, under FDA guidelines, abortifacients like Mifeprex cannot be prescribed or dispensed by a pharmacist under any circumstances.

More importantly, Straight told lawmakers, pharmacists don’t always know why a drug is being prescribed, and arguably, they don’t have a right to know. According to Planned Parenthood, at least 30 percent of all birth control medication is prescribed for medically indicated reasons unrelated to birth control. Birth control is also used by women who have had difficult pregnancies before, or for whom getting pregnant would be life-threatening.

Ertelt doesn’t see that as a problem. If a local pharmacist doesn’t want to fill a prescription, he says, “It’s easy to take a two-minute drive down the street to the next one. There’s maybe a minor inconvenience at best.”

That’s easy to say in places like Missoula County, where there are more than two dozen pharmacies to choose from. But a statewide map of pharmacies from the Montana Board of Nursing shows at least 19 counties that have less than three pharmacies, and four that have none at all.

“We exposed that this impacts rural Montanans to an unbelievable degree,” says Anderson, about the message they brought to legislators. “If you have a rural pharmacist that has a moral objection to contraception, suddenly we have women driving 200 miles to get their birth control pills.”

Such on-the-ground facts proved effective, as did the objections of the Montana Trial Lawyers Association, who raised serious questions about malpractice and liability concerns of entities that refuse to dispense medically necessary drugs.

On Feb. 9, HB 413 was tabled in committee on a vote of 7-12, with three Republican voting with all nine Democrats. An effort to “blast” the bill out of committee for a vote on the House floor was defeated. On Feb. 15, the bill was dead.

Cross-Court Volley

There is no love lost between many conservative lawmakers and the Montana Supreme Court. Montana is one of 45 states that have passed laws requiring a minor to obtain consent from a parent or guardian before getting an abortion. In 1999, the court struck down that law (as it did several others aimed at restricting abortion access) as a violation of a woman’s constitutional right to privacy.

“The Montana Supreme Court is just out of step,” says Ertelt. “They misuse the privacy clause to allow for this unlimited right to abortion on demand. That’s really where the battle will be fought in the next five to 10 years.” As a result, Sen. Duane Grimes introduced SB 416/417 in an effort to amend the constitution to include a parental notification provision.

“This bill would essentially prevent coercion by Planned Parenthood clinics, and I know that that coercion exists,” explains Grimes. “Not only do Planned Parenthood clinics encourage young people not to tell their parents, but they encourage young people to take the counsel of abusive partners and people other than the parents who give them the answers they want to hear.”

Straight disagrees. Planned Parenthood’s counseling services never coerce teens to choose one option over other, she says. And sticking to her message, she backs it up with numbers: About 90 percent of Montana teens already talk to their parents before having an abortion, a rate that is double the national average. They do this, she says, as much for practical support as for emotional and moral support.

“The reasons that young women are notifying their parents aren’t always what we think,” Straight told lawmakers. “It’s not because every family is ‘Leave it to Beaver’ and you tell your parents when you’re in a bad situation. Sometimes it’s because an abortion costs $400 to $500 and you need a ride there.”

As for the 10 percent of young women who don’t tell a parent, Brenneman with the ACLU says that most of them have a good reason for not doing so, such as fear of abuse or being kicked out of the home. Although Grimes’ bill included a “judicial bypass” clause that would allow a pregnant girl to get consent from a judge rather than a parent, Brennenan argued that these are the girls least likely to seek out that option, especially in rural counties where the judge (or his or her staff) often knows the family.

“They’re not going to go to a judge,” says Brenneman. “If they’re that confused and that immature, you know what they’re going to do? They’re going to do it on their own. And they’re going to die.”

It was an effective message. The pro-choice lobby, with support from Women’s Opportunity and Resource Development, the Montana Human Rights Network and the Montana Women’s Lobby, focused their testimony not on abortion or shrill emotional appeals, but on the hard facts of domestic abuse. Opposition on constitutional grounds also came from the Attorney General’s office and the Montana Trial Lawyers Association.

Apparently, the idea of fixing an unconstitutional law by rewriting the constitution didn’t fly. By Feb. 22, SB 416/417 were dead.
Br> Mother and Child

By far, the biggest coup of the session for the pro-choice lobby came on a bill to establish legal rights for an unborn fetus. Rep. Bob Davies was sponsor of HB 547, also known as the “Fetal Protection Act,” which would have made it a separate crime—and imposed additional criminal penalties—to injure or kill a fetus by assaulting a pregnant woman. The bill, similar to the one passed last month by the U.S. House of Representatives and under consideration by the U.S. Senate, was framed by its proponents as a “domestic violence bill.”

“Abortion advocates say that anytime you’re going to acknowledge the unborn child as a person having any rights under law, they immediately flinch,” says Ertelt. “And it’s too bad, because pregnant women need this protection and they’re not getting it.”

Ertelt points to several high-profile cases nationally, including that of former NFL wide receiver Rae Carruth, who was convicted of conspiring to kill his pregnant girlfriend in a drive-by shooting, but was never charged for the murder of her unborn child.

“Our bill said that if you’re a criminal and you violently assault a pregnant mother and in the process of that crime you kill or injure that baby, then you’re held accountable for it,” says Ertelt. “She’s made the choice to have that baby. We ought to honor that choice.”

But domestic violence groups weren’t buying it.

“The message that came out on the Senate floor was, ‘This is not about what you think this is about,’” says Straight. “Of course we want to protect women who are pregnant from being abused. But this is not the way to do it.”

The ACLU took issue with the bill because initially, it included no exemption for the acts of the pregnant woman, raising the specter of women being prosecuted for behavior that causes their own miscarriage. Although the bill was later amended to exclude injuries from a mother taking prescription or illicit drugs, its vague wording did not include an exemptions for alcohol. Thus, a woman could have been prosecuted for injuring her fetus with liquor, but not for snorting cocaine.

“Anything a pregnant woman does that could conceivably affect the fetus—and as we’re learning more and more, everything she does affects the fetus—could be justifiably criminalized, or the basis for taking away the baby once it’s born, or putting a woman in jail,” argues Brenneman. “Basically this was a policing pregnant women act.”

Such fears are neither exaggerated nor hypothetical. In northern California, the ACLU has already defended three pregnant women being prosecuted for illegal drug use under that state’s fetal protection statute, despite such an exemption for the mother. (All were eventually acquitted.) In Wisconsin, pregnant women have been jailed for activities that were considered harmful to their fetus and kept in jail for the duration of their pregnancies.

On Feb. 22, after a lively floor debate, HB 547 passed the House and was referred to the Senate Judiciary Committee. There, in an effort to address constitutional shortcomings, Sen. Halligan introduced amendments to allow the judge to impose stiffer penalties—up to 100 years in additional prison time—for someone who injures or kills a pregnant woman, though the amendments made no specific mention of the rights of the fetus.

While domestic violence groups supported the “Halligan Amendments,” both the pro-life lobby and the bill’s sponsor opposed them, with Ertelt calling them “a slap in the face to the unborn child.” Nevertheless, the amendments were adopted in committee by a 5-4 vote. An effort to “blast” the bill out of committee and force a vote on the Senate floor failed by a vote of 20 in favor vs. 30 against. Of those, 11 Republicans voted with all 19 Democratic senators to kill the measure.

“Yes, this issue is about abortion, but not really,” says Brenneman. “It’s more immediately about being able to dictate what pregnant women do with their bodies and how they have their pregnancies.”

Return to Pre-Roe?

Despite the continual ebb and flow in the abortion battle, there seems little hope of finding common ground on the issue and even less interest in seeking it out. While pro-choice advocates see common ground in the expansion of contraceptive services and comprehensive sex education which reduce unwanted pregnancies (and unwanted abortions), this solution flies in the face of the values of many in the Right-to-Life camp.

Likewise, efforts to legally compel pregnant minors to tell their parents before getting an abortion flies in the face of privacy rights advocates and domestic abuse groups, who argue that such laws are a futile and self-serving attempt to legislate family values and only harm the people they’re intended to help.

Meanwhile, one rarely mentioned fact is that the number of abortions performed nationwide each year continues to fall. In part, this is due to an overall decrease in teen pregnancy, decreasing sexual activity among teenagers and more widespread use of contraceptives.

On a global scale, however, abortion practices are part of a much grimmer picture. Some 50 million abortions are performed worldwide each year. Of those, the World Health Organization estimates that about 20 million are performed under unsafe and unsanitary conditions. As a result, 70,000 women die from them each year, while many more are disfigured or made infertile. Most of these deaths, it’s worth noting, occur in countries where abortions are tightly restricted or outlawed.

Once you get beyond the numbers, of course, there are plenty of other reasons why the pro-choice lobby keeps up the fight. Dr. Clayton McCracken, medical director at Planned Parenthood in Billings, recalls his first experience with abortion back in the 1950s. A 15-year-old girl had just come off a tobacco farm in North Carolina. She’d put turpentine inside her uterus to kill her baby. Ultimately, it killed her as well. That’s the problem with waging war with facts and statistics: Is it’s easy to lose sight of the human element.

“What we told legislators was the truth,” says Straight. “We didn’t say that because we’re lobbyists. We said that because we’re tied to the women of Montana. We are the women of Montana. And that was the message that they heard.”

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