Bill to restrict abortion passed after debate on Senate floor

February 24, 2017 GMT

HELENA — Despite questions of constitutionality, the Senate passed a bill on second reading on Thursday to effectively prohibit the abortion of a viable fetus in all cases.

Both sides of the aisle acknowledged the legislation was sensitive and a difficult topic to discuss, but approved it 32-18 along party lines.

Senate Bill 282, introduced by Albert Olszewski, R-Kalispell, would establish viability at 24 weeks and prohibit an abortion after that point, even if the pregnant woman’s life is at risk. In that case, the woman’s doctor would have to induce labor or deliver the fetus by Caesarean section and do everything medically possible to support the fetus.

A violation of the law would be a felony. Olszewski introduced an amendment that would give doctors the option to use their best judgment on whether a fetus is viable at 24 weeks.

Democrats say the bill is blatantly unconstitutional and infringes on the right of a woman and her physician to make a private medical decision.

Sen. Dick Barrett, D-Missoula, asked the body to think about any life-threatening crisis and who they want making final decisions about their health care. He said people likely wanted to consider their own personal convictions, religious beliefs, and opinions of family members and their physician.

“Think about all the people you want to have participate in that decision at that critical, difficult, painful decision,” he said. “Then ask yourself, ‘Do you want the members of the Montana Senate?’ I think the answer is no.”

Sen. Diane Sands, D-Missoula, said the bill is unconstitutional, with multiple cases affirming Roe v. Wade.

“Abortion must be available under the constitutional framework of Roe,” she said.

Sands said the bill, unlike any other Montana law, would in some cases mandate a doctor deliver a baby via Caesarean section.

“There is no other law that any of us could find in statute that mandates a specific medical procedure required of a physician and overriding a physician’s best medical judgment, training and oath of office,” Sands said.

Olszewski said the law does, citing Section 50 Title 18, which says a health office can quarantine a person who refuses examination or treatment of a sexually transmitted disease, and allows testing and treatment of people incarcerated.

All 32 Republicans voted for SB 282, saying physicians should do everything in their power to resuscitate a viable fetus when a mother wants an abortion.

Majority leader Fred Thomas, R-Stevensville, said he understood some cases of abortion when performed early, referencing a couple he knew who terminated their pregnancy when they found out the fetus didn’t have a brain.

“I don’t question their decision. I think it was right,” Thomas said. “They would vote for the bill if they had the ability to do so today.”

Sen. Steve Hinebauch, R-Wibaux, said he was in support of the bill in committee and would support it on second reading as well.

“I think we need to quit murdering babies,” he said. But during the hearing, SK Rossi of ACLU Montana reminded legislators they are prohibited from passing laws to restrict abortion under the guise of protecting women’s health.

Rossi also said some laws appear to protect the health of a woman, but are introduced without medical evidence and only serve to restrict abortion access. In Planned Parenthood v. Casey, the Supreme Court said states cannot use that argument to shut down abortion clinics without evidence.

“I would propose to you that the women’s health piece is not the actual intent of this bill,” Rossi said. “I think the intent of this bill is to restrict legal abortion access.”

The bill is scheduled for third reading Friday.