HELENA — Multiple opponents and committee members questioned the constitutionality of a bill introduced on Monday that would effectively prohibit the abortion of a viable fetus in all cases.
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. If a woman’s life was at risk, her doctor would have to induce labor or deliver the fetus by cesarean section and do everything medically possible to support the fetus. A violation of the law would be a felony.
Most of the proponents said they support the bill for moral reasons and cited several cases of premature babies living without complications.
Bowen Greenwood, of the Montana Family Foundation, said the bill supports a core value of his organization by cherishing life. He said the bill avoids a majority of the expected abortion debate by only focusing on a viable fetus.
“If a baby would live outside the womb, are we justified in legally protecting its life?” he asked.
Terry Forke, a Lutheran pastor, said viability discussed in Roe v. Wade is outdated, with new medical technology capable of supporting fetuses sooner.
But opponents cited numerous cases they say makes the bill patently unconstitutional. In addition to issues of constitutionality being raised by Planned Parenthood and the ACLU, a legal review by Legislative Services questions the legality of the bill. The review says the Fourteenth Amendment of the U.S. Constitution and Article II section 10 of the Montana Constitution protect a woman’s right to abortion.
SK Rossi of ACLU Montana cited Planned Parenthood v. Danforth and Colautti v. Franklin, two cases that prohibit states from establishing a viability marker.
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.”
Martha Stahl, President and CEO of Planned Parenthood Montana, said viability should be decided by a doctor and varies on a case-by-case basis.
“Abortion in the U.S. is safe and has an extremely low rate of complications overall,” she said. “This bill threatens doctors for exercising their medical judgment.”
Olszewski gave members of the committee statistics of maternal mortality rates in the U.S., which say abortion after 21 weeks results in 76.6 deaths per 100,000. Sen. Steve Hinebauch, R-Wibaux, asked the sponsor why more deaths occur later in pregnancy, but Olszewski declined to go into details further than saying an abortion is messy.
When Sen. Diane Sands, D-Missoula, said Olszewski is an orthopedic surgeon, not an obstetrician, he responded saying he wasn’t an obstetrician because he was blushing too much during his clinical rounds.