Montana Attorney General Tim Fox has joined the legal defense of North Carolina’s abortion restrictions as they’re challenged in a federal lawsuit.
On Thursday, the attorney general’s office announced that Fox had joined attorneys general from 18 other states in filing an amicus brief supporting several North Carolina officials facing a federal lawsuit over abortion restrictions.
The North Carolina law in question bans abortion after the 20th week of pregnancy except in medical emergencies. A news release from Fox's office describes the prohibition as "crucial … to protect the lives of unborn children and safeguard similar laws across the nation."
The North Carolina law was first passed in 1973 and strengthened in 2015. The following year, Planned Parenthood South Atlantic and three physicians sued, alleging that the law was unconstitutional.
The case currently sits in the U.S. Court of Appeals for the Fourth Circuit. In their amicus brief, the attorneys general argue that the plaintiffs lacked standing to sue because they had not established a credible threat of prosecution under North Carolina’s law or even that it would be enforced. But at the same time, they contended that “the Constitution does not prohibit all abortion regulations before the point of viability.”
“This case is about not only protecting unborn children, but protecting the rights of states to regulate abortion as well,” Fox stated in a press release.
The attorney general has joined his counterparts from other right-leaning states in federal lawsuits before, opposing environmental regulations and firearm restrictions.
“I wouldn’t say him signing on to such a brief … is a break or something he’s never done before,” said Lee Banville, a political analyst at the University of Montana.
But Banville said Fox’s action on this lawsuit suits his campaign for the governor’s office.
“I do think he’s also looking to bolster his credibility to Republican voters. … When a group like the Susan B. Anthony List, an abortion opposition organization, very publicly backs Greg Gianforte (U.S. Rep. Gianforte in the governor’s race), this brief is a way for attorney general Fox to counter that and say, ‘I am also strong on these issues.’”
But if this step raises Fox’s profile among Republican primary voters, it’s also drawing opposition.
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"Efforts to ban constitutionally protected abortions are out of touch and could create real harms for people who need access to the full spectrum of reproductive healthcare,” wrote Caitlin Borgmann, the ACLU of Montana’s executive director, in an emailed statement. “It’s embarrassing to see Montana sign on to the multi-state brief."
In recent years, abortion has been a flash point between Montana’s Republican-controlled legislature, which has passed several bills restricting the procedure, and Democratic Gov. Steve Bullock, who has regularly vetoed them. UM’s Banville predicts that, regardless of who wins the GOP primary, a Republican in the governor’s office would mean abortion restrictions becoming law.
That prospect weighs on Rep. Kim Dudik, a Missoula lawmaker and former nurse now running for attorney general.
“I oppose any restrictions on a woman’s right to privacy” in her health care, she said. Noting the Montana Constitution’s protections of privacy rights, she said, “if there were laws that came out violating that right, I would not defend those laws (as attorney general) because they are not constitutional.”
Dudik has worked in cooperation with Fox on issues such as combating human trafficking. However, she disagreed with his defense of the North Carolina law.
“I don’t think that Montana’s attorney general should be joining a lawsuit that infringes upon that (privacy) right,” she said.
Raph Graybill, Bullock's attorney and a Democratic candidate for attorney general, was also sharply critical of Fox's actions.
“I’m shocked. The Montana attorney general’s most important job is defending our constitution. Women and their families need the freedom to make the best medical decisions for their circumstances. They don’t deserve to pay the price for the attorney general’s out-of-touch political agenda,” Graybill said in a campaign statement.
Graybill pointed to a state Supreme Court decision from 1999 that upheld a woman's right to access abortion services and said the decision cemented the state Constitution's guarantee that individuals have the right to make medical decisions without interference from the government.
But in a statement from his office, Fox noted he's doing the will of most Montanans in taking the stance.
“I am also defending the parental notification ballot measure passed by 70% of voters in 2012 and the parental consent law passed by the Legislature in 2013," Fox said in a statement from his spokesperson. "It’s important to have an attorney general who stands up for the law instead of pledging to sit things out.”