Governor Gianforte Urges Supreme Court To Accept Public Input Given Dobbs Decision

Governor Gianforte: “Return the policy question of abortion to the legislature”

Governor's Office
  • August 02 2022

HELENA, Mont. – In light of the U.S. Supreme Court’s recent decision in Dobbs v. Jackson, Governor Greg Gianforte today urged the Montana Supreme Court to accept new briefings from the public as the court weighs challenges to pro-life laws.

The Dobbs decision overturned Roe v. Wade, returning the authority to regulate abortion to the people of each state and their elected representatives. In its 1999 Armstrong v. State decision, the Montana Supreme Court relied on Roe in recognizing a right to abortion in Montana.

In his motion Gov. Gianforte wrote, “[B]ecause of Dobbs, the Court must necessarily revisit its decision in Armstrong. As part of that review, the Court will need to re-assess, without Roe, the limits of its authority to interpret a constitutional right to include that which was expressly intended and believed to be excluded from the Bill of Rights, and instead reserved to the Legislature.”

Governor Gianforte also filed an amicus brief with the Montana Supreme Court in support of the State of Montana, which is appealing a lower court decision in a lawsuit filed against the State by Planned Parenthood of Montana. Planned Parenthood is challenging three pro-life measures Gov. Gianforte signed into law in 2021.

Citing deliberations at the 1972 Montana Constitutional Convention and Montana laws dating back to its territorial days and early statehood, Gov. Gianforte underscored the well-established, exclusive role of the legislature to make policy related to life.

“The prerogative to establish such policy [surrounding life] has been long understood in Montana to belong to the legislature, not the executive or judicial branches,” Gov. Gianforte wrote in his amicus brief. “In light of Dobbs, the Montana Supreme Court must reconsider Armstrong and return the issue to the legislature, where it rightly belongs.”

Gov. Gianforte emphasized that, since the U.S. Supreme Court overturned Roe, Armstrong can no longer inform an interpretation of the Montana Constitution. The governor further argued that historical context – from the 1972 Montana Constitutional Convention to the absence of changes to abortion law in response to the constitution’s adoption in 1972 – makes clear the Montana Constitution does not protect abortion.

The governor concluded, “What was true in Dobbs is true here: ‘Nothing in the Constitution or in legal traditions authorizes the Court to adopt [a] ‘theory of life.’’ The Montana Constitution and the Constitutional Convention that adopted it left that policy question to the legislature, where it resided during Montana’s status as a territory and since statehood. With the overturning of Roe, which formed a basis for the Armstrong decision, this Court must honor such context. Failure to do so would be to reprise the failings of Roe in an unconstitutional ‘exercise of raw judicial power’ and perpetuate on Montanans the same judicial harm that resulted nationally from Roe and its progeny for half a century. Amicus Governor Gianforte respectfully urges this Court to reconsider Armstrong in light of Dobbs and return the policy question of abortion to the legislature.”

Governor Gianforte’s motion for supplemental briefing may be found here, and his amicus brief here.