Montana Marches to the Beat of Its own Drummer
Summary of the Montana Supreme Court Whitepaper
For a PDF copy of the full Montana whitepaper, please click here
Under the Montana constitution, matters of life and death are private, and the Montana Supreme Court will protect that privacy, largely heedless of developments in federal law.
Life Issues
Abortion
In Blackburn and Estate of Baby Deceased v Blue Mountain Women’s Clinic, the Montana Supreme Court distinguished between the state tort rights of a fetus alive at full term and the federal civil rights of an early aborted fetus. It held that because the plaintiff raised federal claims on behalf of her first-trimester, non-viable, aborted fetus, and federal cases hold a first-trimester, non-viable, aborted fetus is not a “person” on whose behalf a federal civil rights action may be maintained, the plaintiff had no cause of action.
In Armstrong v State, the Court held that a state law permitting only doctors to perform abortions was unconstitutional. The Court ruled unanimously that medical treatment decisions are intrinsically personal, that “personal autonomy” is protected by Montana’s constitutional right of privacy, and that the fundamental right of privacy includes a “procreative autonomy” component. Justice Nelson went so far as to declare that the legislature is too vulnerable and too political pressured to make determinations concerning abortion. In a handful of “pro-life protest” cases, the Court held that abortion protestors are entitled to believe and act in accordance with their personal beliefs, but those beliefs do not provide immunity from the criminal law.
Protection of the Unborn from Criminal Violence
In Strelczyk v Jett, the Montana Supreme Court held that a full-term unborn child fits the state definition of a “person” for purposes of tort law, thus allowing recovery for tortious injury to a full-term unborn child.
Assisted Suicide
Montana’s “Rights of the Terminally Ill Act” and “Do Not Resuscitate Act” specially state that they do not “condone, authorize, or approve mercy killing or euthanasia.” Montana also has a statute criminalizing assisting another in an unsuccessful suicide attempt. In State v Dr. James Bischoff, Bischoff was charged with physician-caused homicide (not physician assisted suicide) for administering heart stopping drugs to a patient he claimed was brain dead. He pled guilty to a reduced charge of negligent homicide. In State v Dawson, Dawson was a convicted murderer, sentenced to execution, who wanted to discharge his lawyers and proceed to be executed. The Court unanimously held Dawson had a right to end his appeals and his life under the “personal autonomy” component of the right to privacy guaranteed by Montana’s Constitution.
Healthcare Rights of Conscience
Montana’s “Right to Refuse Participation in Sterilization Act” provides that no private hospital, health care facility, or person can be compelled to participate in sterilization against moral or religious principles and prohibits firing any person for refusing to participate in sterilization on those grounds. The state has a similar law protecting the right to refuse to participate in an abortion. In the 1979 case Swanson v St. John’s Hospital, the Montana Supreme Court found that a nurse-anesthetist who refused to participate in sterilization procedures had been unlawfully discharged for exercising her statutory right of conscience.
Cloning and Destructive Embryo Research
The Montana Supreme Court has not considered cases on cloning or embryo research. In 2007, a state legislator proposed a bill that would encourage federal funding for stem cell research, but no action has yet been taken.
Judicial Restraint
Overall, the Montana Supreme Court could not be characterized as activist. The passionate views of social justice articulated from the left end of the bench are fairly well balanced by the justices who belief that social policy is the province of the Legislature, to be implemented by the executive offices, and not cast as law from the bench. Two justices consistently exercise judicial restraint and attempt textual interpretation rather than social policy interpretation of legislation. Two justices fall in the middle, tending to agree that legislators make laws and judges do not. Three justices tend to not just interpret legislative enactments but to incorporate libertarian concepts of justice into them when the legislature fails to do so. One justice has not served long enough to reveal his judicial philosophy.
The Court
Justices are appointed to the Montana Supreme Court for staggered terms of eight years. If a vacancy occurs, the governor appoints a justice to serve until the next election, when the voters vote to retain the appointee or elect another candidate to the bench. The Montana Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Montana whitepaper, please click here