Armstrong v. State

No

No. 98-066

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 261

296 Mont. 361

989 P.2d 364

JAMES H. ARMSTRONG, M.D.; SUSAN

CAHILL, P.A.; BARBARA POLSTEIN, D.O.;

MINDY OPPER, P.A.; and BLUE MOUNTAIN

CLINIC, on behalf of themselves and their patients

throughout Montana, the surrounding states and

Canada,

Plaintiffs and Respondents,

v.

THE STATE OF MONTANA and JOSEPH P.

MAZUREK, in his official capacity as Attorney

General for the State of Montana and his agents

and successors,

Defendants and Appellants.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

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The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Joseph P. Mazurek, Attorney General, Clay R. Smith, Solicitor (argued), Helena, Montana

For Respondent:

Janet Benshoof, Simon Heller (argued), Julie F. Kay, The Center for Reproductive Law & Policy, New

York, New York; Bruce Measure, Law Offices of Ambrose Measure, Kalispell, Montana

Heard: October 15, 1998

Submitted: July 1, 1999

Decided: October 26, 1999

Filed:

_______________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1.Plaintiffs James H. Armstrong, M.D.; Susan Cahill, P.A.; Barbara Polstein, D.O.;

Mindy Opper, P.A.; and Blue Mountain Clinic, filed suit in this matter seeking a

determination that § 37-20-103, MCA (1995), and § 50-20-109, MCA (1995),

prohibiting physician assistants-certified from performing abortions, violates the

privacy, equal protection and bill of attainder provisions of the Montana

Constitution. The District Court for the First Judicial District, Lewis and Clark

County, granted Plaintiffs' motion for a preliminary injunction, protecting the

abortion practice of Armstrong and Cahill. The State appeals. We affirm.

Introduction

Standing

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¶2.The core constitutional right which is under attack in the case at bar is the

fundamental right of individual privacy guaranteed by Article II, Section 10, of the

Montana Constitution. Quite simply, the statutory amendments at issue prevent a

woman from obtaining a lawful medical procedure--a pre-viability abortion--from a

health care provider1 of her choosing. In so doing, these amendments

unconstitutionally infringe a woman’s right to individual privacy under Montana's

Constitution.

¶3.Before we begin our substantive discussion setting forth our rationale for this

conclusion, we must first note the obvious. Plaintiffs Armstrong, Cahill, Polstein and

Opper are not women who were prevented from obtaining a pre-viability abortion.

Rather, they are health care providers who perform such abortion services, or who

provide counseling and referrals related to such services. Plaintiff Blue Mountain

Clinic, an institutional health care provider, employs Polstein and Opper. In all

instances, the plaintiffs brought suit on their own behalf as well as on behalf of their

patients. Thus, we are faced with a threshold question: Do the plaintiff health care

providers have standing to assert the privacy rights of their women patients? We

conclude that they do.

¶4.Standing was not raised by the parties. Rather, this case was briefed and argued

to the District Court and to this Court on appeal on the basis that the statutory

amendments either did or did not violate women’s constitutional right to privacy.

Presented in that posture, we would, as a general rule, decline to address on appeal

an issue not raised by the parties. See Custody of N.G.H. (1998), 1998 MT 212, ¶ 19,

290 Mont. 426, ¶ 19, 963 P.2d 1275, ¶ 19. Standing, however, is an exception to that

rule. See Matter of Paternity of Vainio (1997), 284 Mont. 229, 235, 943 P.2d 1282, 1286

(identifying standing as a "threshold requirement of every case"); Rieman v.

Anderson (1997), 282 Mont. 139, 144, 935 P.2d 1122, 1125 (stating that objections to

standing cannot be waived and may be raised by the court sua sponte).

¶5.Moreover, since this case involves important issues of first impression in

Montana, our failure to raise and to address standing may leave open to further

challenge via that argument the constitutional rights at issue. We are not willing to

leave that stone unturned, and, therefore, choose to articulate the rationale which

makes it appropriate that we decide this case on the basis that it was presented to us.

¶6.In the context of challenges to government action, we have stated that the

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following criteria must be satisfied to establish standing: (1) The complaining party

must clearly allege past, present or threatened injury to a property or civil right; and

(2) the alleged injury must be distinguishable from the injury to the public generally,

but the injury need not be exclusive to the complaining party. See Olson v.

Department of Revenue (1986), 223 Mont. 464, 470, 726 P.2d 1162, 1166 (concluding

that the appellants lacked standing to challenge the constitutionality of statutes

requiring county residency to run for county office, or obtain a hunting or fishing

license, where the record reflected that they had not attempted to run for office or

obtain hunting or fishing licenses); Lee v. State (1981), 195 Mont. 1, 7, 635 P.2d 1282,

1285 (concluding that the appellant, as a licensed Montana motorist, was directly

affected by 55-mile-an-hour speed limit law, and therefore had standing to challenge

its constitutionality although the law generally applied to all motorists).

¶7.Although we followed Lee in Helena Parents v. Lewis & Clark County (1996), 277

Mont. 367, 922 P.2d 1140, we also extensively relied on numerous United States

Supreme Court decisions in articulating whether a parents’ organization had

standing to challenge a county and school district’s investment practices that

allegedly violated state law. In concluding that the organization had standing, we

effectively broadened the second prong of the above two-part rule to include harm

that is common to the general public but that can still affect the individual taxpayer

in ways that are not common to the public. See Helena Parents, 277 Mont. at 371-74,

922 P.2d at 1142-44 (citing Worth v. Saltine (1975), 422 U.S. 490, 498, 95 S.Ct. 2197,

2205, 45 L.Ed.2d 343; Flast v. Cohen (1968), 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952,

20 L.Ed.2d 947; Virginia v. American Booksellers Ass’n. (1988), 484 U.S. 383, 392-93,

108 S.Ct. 636, 642-43, 98 L.Ed.2d 782; United States v. SCRAP (1973), 412 U.S. 669,

93 S.Ct. 2405, 37 L.Ed.2d 254; Sierra Club v. Morton (1972), 405 U.S. 727, 734, 92 S.

Ct. 1361, 1366, 31 L.Ed.2d 636).

¶8.The case at bar--involving constitutional issues related to abortion and privacy--

presents a standing question of first impression in Montana. It is one which does not

fit precisely within the parameters of the broadened two-part rule set out above.

Specifically, the standing question can be phrased as: Where governmental

regulation directed at health care providers impacts the constitutional rights of

women patients, may a health care provider litigate the infringement of these rights

on behalf of the women or must the women aggrieved assert their own rights?

¶9.Finding no relevant authority in Montana on this question we again turn, as we

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did in Helena Parents, to federal case law. The federal courts have thoroughly

addressed and resolved whether the special relationship between a physician and

patient afford the former standing to litigate the constitutional rights of the latter.

See Singleton v. Wulff (1976), 428 U.S. 106, 117-18, 96 S.Ct. 2868, 2875-76, 49 L.Ed.2d

826 (concluding that based on the "closeness of the relationship," physicians have

standing to maintain, on behalf of their women patients, a suit challenging the

constitutionality of certain Missouri abortion laws). See also Cruzan v. Director,

Missouri Dep’t of Health (1990), 497 U.S. 261, 340 n.12, 110 S.Ct. 2841, 2884 n.12, 111

L.Ed.2d 224 n.12 (Stevens, J., dissenting) (stating that the United States Supreme

Court has "recognized that the special relationship between patient and physician

will often be encompassed within the domain of private life protected by the Due

Process Clause," and citing Griswold v. Connecticut (1965), 381 U.S. 479, 481, 85 S.Ct.

1678, 1679, 14 L.Ed.2d 510, and Roe v. Wade (1973), 410 U.S. 113, 152-53, 93 S.Ct.

705, 726-27, 35 L.Ed.2d 147). See also Planned Parenthood of Central Missouri v.

Danforth (1976), 428 U.S. 52, 59, 96 S.Ct. 2831, 2836, 49 L.Ed. 788 (noting that once

the lower court deemed physicians had standing to bring suit on behalf of patients, it

was "unnecessary to determine whether Planned Parenthood also had standing").

¶10.It is especially noteworthy that the federal courts have not refrained from

according to physicians, threatened with the personal risk of prosecution, standing to

challenge abortion restrictions by asserting the rights of their patients. The holding

and analysis in Singleton unequivocally established that right three years after the

Court decided Roe v. Wade. Citing prior case law where physicians had been allowed

to assert the rights of their patients, the Singleton Court stated:

A woman cannot safely secure an abortion without the aid of a physician, and an

impecunious woman cannot easily secure an abortion without the physician’s being

paid by the State. The woman’s exercise of her right to an abortion, whatever its

dimension, is therefore necessarily at stake here. Moreover, the constitutionally

protected abortion decision is one in which the physician is intimately involved. See

Roe v. Wade, 410 U.S. 153-156, 93 S.Ct. 726-728. Aside from the woman herself,

therefore, the physician is uniquely qualified to litigate the constitutionality of the

State’s interference with, or discrimination against, that decision.

....

For these reasons, we conclude that it generally is appropriate to allow a physician

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to assert the rights of women patients as against governmental interference with the

abortion decision . . . .

Singleton, 428 U.S. at 117-18, 96 S.Ct. at 2875-76.

¶11.Even the concurring-dissenting justices in Singleton (who disagreed with part of

the Supreme Court’s decision on the facts of the case) nevertheless conceded the

correctness of the Court’s analysis and holding in situations where the "State directly

interdicted the normal functioning of the physician-patient relationship by

criminalizing certain procedures." Singleton, 428 U.S. at 128, 96 S.Ct. at 2881

(Powell, J., concurring and dissenting).

¶12.That is, of course, precisely the situation in the case sub judice. The statutes

challenged by the health care providers here directly interdict the normal

functioning of the physician-patient relationship by criminalizing certain procedures.

¶13.Accordingly, on the basis of the foregoing and in the context of this case, we

resolve the standing issue by adopting the approach of the federal courts. We hold

that the Plaintiff health care providers have standing to assert on behalf of their

women patients the individual privacy rights under Montana’s Constitution of such

women to obtain a pre-viability abortion from a health care provider of their

choosing.

Scope of Opinion

¶14.Having thus resolved the standing issue, we also conclude that in the context of

this case, Article II, Section 10 of the Montana Constitution broadly guarantees each

individual the right to make medical judgments affecting her or his bodily integrity

and health in partnership with a chosen health care provider free from government

interference. More narrowly, we conclude that Article II, Section 10, protects a

woman's right of procreative autonomy--i.e., here, the right to seek and to obtain a

specific lawful medical procedure, a pre-viability abortion, from a health care

provider of her choice.

¶15.Importantly, this case requires that we decide who should set the standards for

reasonable medical practice and procedure in this State. As in the case at bar, should

legislators determine these standards based upon prevailing political ideology,

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personal values and beliefs, and under pressure from a vocal and powerful

constituency? Or, should these standards be set by the medical community in the

exercise of its collective professional expertise and judgment, acting through the

state's medical examining and licensing authorities, and after taking into

consideration the education, training, experience and skills of the health care

provider and the patient's health interests?2

¶16.Finally, we must decide whether, in the case before us, the government has

demonstrated a compelling state interest for infringing women's right of procreative

autonomy guaranteed under Article II, Section 10 of the Montana Constitution. In

this regard, we conclude that it has not.

Factual and Procedural Background

¶17.To place the challenged legislation in proper perspective, we review the history

and evolution of the related statutory provisions. In response to the United States

Supreme Court's decision in Roe v. Wade, the Montana Legislature enacted the

Montana Abortion Control Act (the Act), Title 50, Chapter 20 of the Montana Code

Annotated. Included in that legislation were the following provisions:

Control of practice of abortion. (1) No abortion may be performed within the state

of Montana:

(a) except by a licensed physician;

(b) after the first 3 months of pregnancy, except in a hospital licensed by the

department;

...

(4) No physician, facility, or other person or agency shall engage in solicitation,

advertising, or other form of communication having the purpose of inviting,

inducing, or attracting any person to come to such physician, facility, or other

person or agency to have an abortion or to purchase abortifacients.

Section 50-20-109, MCA (1991).

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¶18.In December 1992, Arlette Randash (Randash), Executive Director of the

Montana Right to Life Association, and Charles Lorentzen (Lorentzen), President of

Flathead Pro-Life, began writing letters to various individuals in state and local

government arguing that criminal charges should be brought against Dr. Armstrong

and P.A. Cahill. In a December 7, 1992 letter to then Attorney General Marc

Racicot, Randash asked Racicot to investigate the performance of abortions by a

physician assistant working at Dr. Armstrong's office and for Racicot to inform

Randash of his findings. Randash alleged that the abortions were being performed in

violation of § 50-20-109, MCA.

¶19.In March 1993, Lorentzen sent similar letters regarding Dr. Armstrong to

Racicot, who by then was Governor of Montana, to Flathead County Attorney Tom

Esch, and to Eleanor Parker, Montana Department of Health and Environmental

Sciences counsel. Lorentzen alleged that Dr. Armstrong had violated the Act,

specifically §§ 50-20-109(1)(a), (b) and (4), MCA. Parker referred the letter to

Attorney General Joe Mazurek who referred the matter to Esch. On April 9, 1993,

Esch asked Detective Ron Fredenberg of the Kalispell Police Department to

investigate the performance of abortions at Dr. Armstrong's office by a person other

than a licensed physician and the performance of second-trimester abortions outside

of a hospital.

¶20.Dr. Armstrong and P.A. Cahill, the only physician assistant in the State

performing abortions, challenged various provisions of the Act in federal court.

Subsequently, the State stipulated to a permanent injunction prohibiting

enforcement of Montana's requirement that abortions be performed only by licensed

physicians as well as a permanent injunction against the second-trimester

hospitalization requirement and the ban on advertising.

¶21.In 1995, Representative Susan Smith (Smith) of Kalispell, sponsored House Bill

442 to amend § 37-20-103, MCA (a portion of the Montana Code regulating

physician assistants-certified), and § 50-20-109, MCA, to specifically exclude

physician assistants-certified from performing abortions. Ch. 321, L. 1995. Thus, as

noted by District Judge Sherlock, these amendments trace their genesis to the

complaints and demands addressed to county and state officials by certain anti-

abortion groups operating in the Flathead Valley of northwestern Montana.

¶22.Smith contended in hearings before the House Committee on Human Services

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and Aging, and the Senate Committee on Public Health, Welfare & Safety, that HB

442 was intended to protect women who are seeking abortions from possible

complications and that the legislation was a women's health and safety issue.

However, at the hearings, Smith and other proponents of the legislation failed to

relate any complications or problems encountered by patients of P.A. Cahill during

the more than twenty years that P.A. Cahill has been performing abortions.

¶23.Furthermore, those testifying in support of HB 442 during the February 10, 1995

hearing before the House Committee on Human Services and Aging, and the March

10, 1995 hearing before the Senate Committee on Public Health, Welfare and Safety,

failed to give any medical justification for excluding physician assistants-certified

from performing abortions. Moreover, none of the proponents of HB 442 testifying

before the House Committee and only one of the proponents of HB 442 testifying

before the Senate Committee was a licensed physician. Instead, those testifying in

favor of HB 442 included representatives of the Montana Right to Life Association,

the Montana Catholic Conference, and Eagle Forum, as well as the Executive

Director of the Montana Christian Coalition.

¶24.Opponents of HB 442 testified that, since there were no medical reasons why

physician assistants-certified could not perform abortions, HB 442 was just another

obstacle to affordable health care for women. Those testifying against HB 442

included both current and former members of the Montana Board of Medical

Examiners, the Executive Director of the American Civil Liberties Union of

Montana, and the President of the Montana Academy of Physician Assistants, as well

as representatives of the Montana Women's Lobby, the Montana Business and

Professional Women's Association, the Center for Reproductive Law and Policy, and

the National Abortion and Reproductive Rights Action League.

¶25.HB 442 was passed by the Montana Legislature and signed into law by Governor

Racicot on April 3, 1995. Through the passage of this bill, § 37-20-103, MCA, was

amended to include the following sentence: "A physician assistant-certified may not

perform an abortion." And, § 50-20-109, MCA, was amended to include a new

subsection (5) that provides: "The utilization plan of a physician assistant-certified

may not provide for performing abortions." In addition, such conduct was

criminalized as a felony. Section 50-20-109(6), MCA. Passage of HB 442 also

effectively re-enacted the provisions requiring second trimester abortions to be

performed in a hospital and banning advertising.

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¶26.Dr. Armstrong and P.A. Cahill, along with various other abortion providers,

responded to the amendment of § 37-20-103, MCA, and § 50-20-109, MCA, by filing

suit in federal court to prevent enforcement of the amended statutes regarding

physician assistants. They also sought to prevent the enforcement of the second

trimester hospitalization requirement and the ban on advertising which were re-

enacted by the amendment of the statute. The trial court enjoined enforcement of the

re-enacted abortion restrictions, but declined to grant a preliminary injunction

against enforcement of the ban on Dr. Armstrong's utilization of P.A. Cahill to

perform abortions. Armstrong v. Mazurek (D. Mont. 1995), 906 F.Supp. 561.

¶27.On appeal, the Ninth Circuit vacated the District Court's denial of a preliminary

injunction against enforcement of the statutes restricting the performance of

abortions to licensed physicians and remanded the case to the District Court.

Armstrong v. Mazurek (9th Cir. 1996), 94 F.3d 566. On November 5, 1996, the State

consented to an injunction against enforcement of the Act while the State sought

review by the United States Supreme Court. The Supreme Court, by a 6-3 vote,

determined that Plaintiffs failed to establish the likelihood of prevailing on the merits

of their claim that the statutory provisions violated due process by imposing an

undue burden on a woman's right to choose to terminate a pregnancy prior to the

viability of the fetus, and thus, Plaintiffs were not entitled to preliminary injunctive

relief. Mazurek v. Armstrong (1997), 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162.

¶28.On October 1, 1997, following the Supreme Court's ruling, Respondents filed the

instant case in the District Court for the First Judicial District, Lewis and Clark

County, contending that HB 442 violated Montana's constitutional provisions

regarding privacy, due process, and equal protection of the laws. On November 25,

1997, the District Court granted Plaintiffs' motion for a preliminary injunction, but

limited the scope of the injunction to Dr. Armstrong and P.A. Cahill. The District

Court found that the Act affects a woman's constitutional right to obtain a first

trimester abortion and that the State had advanced no compelling interest to justify

prohibiting P.A. Cahill from performing abortions as she has safely done for the past

twenty years. The State appeals the court's order granting Plaintiffs' motion for a

preliminary injunction.

Discussion

I.

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¶29.Article II, Section 10 of the Montana Constitution provides:

Right of privacy. The right of individual privacy is essential to the well-being of a

free society and shall not be infringed without the showing of a compelling state

interest.

¶30.Modern legal notions of the right of privacy trace their roots to the political

theory of English philosopher John Locke. Locke's concept of "liberty" was

prevalent in colonial America and significantly influenced the framers of this

country's foundation documents, including the United States Constitution. Among

other things, this philosophy holds that the laws of nature require that each

individual has an inherent property interest in his own person and has the capacity

for and the right of rational self-determination which must be promoted and

protected by civil society and political institutions. See Larry M. Elison and Dennis

NettikSimmons, Right of Privacy, 48 Mont. L. Rev. 1, 17-19 (1987) (hereafter, Elison);

Jeffrey S. Koehlinger, Substantive Due Process Analysis and the Lockean Liberal

Tradition: Rethinking the Modern Privacy Cases, 65 Ind. L.J. 723 (1990).

¶31.John Stuart Mill recognized this fundamental right of self-determination and

personal autonomy as both a limitation on the power of the government and as

principle of preeminent deference to the individual. He stated:

[T]he only purpose for which power can be rightfully exercised over any member of

a civilised [sic] community, against his will, is to prevent harm to others. His own

good, either physical or moral, is not a sufficient warrant. He cannot rightfully be

compelled to do or forbear because, it will be better for him to do so, because it will

make him happier, because, in the opinion of others, to do so would be wise, or even

right.

Mill, On Liberty, 43 Great Books of the Western World 271 (R. Hutchins ed. 1952)

(quoted in Brophy v. New England Sinai Hospital (1986), 398 Mass. 417, 430, 497 N.E.2d

626, 633).

¶32.Despite prior judicial recognition of this general "liberty interest" or right of

privacy by both the United States Supreme Court and this Court3, the delegates to

Montana's 1972 Constitutional Convention viewed the textual inclusion of this right

in Montana's new constitution as being necessary for the protection of the individual

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in "an increasingly complex society . . . [in which] our area of privacy has decreased,

decreased, decreased." This "right to be let alone . . . the most important right of

them all," as Delegate Campbell put it, "produces . . . a semipermeable wall of

separation between individual and state" in much the same fashion that a

constitutional wall4 separates church and state. Montana Constitutional Convention,

Verbatim Transcript, March 7, 1972, p. 1681.

¶33.Furthermore, it is clear from their debates that the delegates intended this right

of privacy to be expansive--that it should encompass more than traditional search

and seizure. The right of privacy should also address information gathering and

protect citizens from illegal private action and from legislation and governmental

practices that interfere with the autonomy of each individual to make decisions in

matters generally considered private. Elison, at 11-13.

¶34.With this background, and as correctly noted by Judge Sherlock, Montana

adheres to one of the most stringent protections of its citizens' right to privacy in the

United States--exceeding even that provided by the federal constitution. State v.

Burns (1992), 253 Mont. 37, 40, 830 P.2d 1318, 1320 (citing Montana Human Rights

Division v. City of Billings (1982), 199 Mont. 434, 439, 649 P.2d 1283, 1286). Indeed,

since the right of privacy is explicit in the Declaration of Rights of Montana's

Constitution, it is a fundamental right. Gryczan v. State (1997), 283 Mont. 433, 449,

942 P.2d 112, 122. It is,

perhaps, one of the most important rights guaranteed to the citizens of this State, and

its separate textual protection in our Constitution reflects Montanans' historical

abhorrence and distrust of excessive governmental interference in their personal

lives.

Gryczan, 283 Mont. at 455, 942 P.2d at 125. For this reason, legislation infringing

the exercise of the right of privacy must be reviewed under a strict-scrutiny

analysis--i.e., the legislation must be justified by a compelling state interest and

must be narrowly tailored to effectuate only that compelling interest. Gryczan, 283

Mont. 449, 942 P.2d at 122 (citing State v. Siegal (1997), 281 Mont. 250, 263, 934

P.2d 176, 184, overruled in part by State v. Kuneff (1998), 291 Mont. 474, 970 P.2d

556).

II.

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¶35.As noted, Article II, Section 10 of the Montana Constitution was intended by the

delegates to protect citizens from illegal private action and from legislation and

governmental practices that interfere with the autonomy of each individual to make

decisions in matters generally considered private. However, it was not until our

decision in Gryczan that this Court directly addressed and judicially recognized this

"personal autonomy" component of Montanans' fundamental constitutional right of

individual privacy. Gryczan, 283 Mont at 450-51, 942 P.2d at 123. See also Elison, at

13 n.83; Scott A. Fisk, The Last Best Place to Die: Physician-Assisted Suicide and

Montana's Constitutional Right to Personal Autonomy Privacy, 59 Mont. L. Rev. 301,

323-25 (1998) (hereafter, Fisk). In Gryczan, we held that the personal autonomy

component of the right of individual privacy includes the right of consenting adults

to engage in private, same-gender, non-commercial sexual conduct free from

governmental interference, intrusion and condemnation. Gryczan, 283 Mont. at 455-

56, 942 P.2d at 126. Beyond that, however, we made no attempt to define personal

autonomy as a component of the right of individual privacy or to articulate its scope.

¶36.While some suggest that this was an oversight--see Fisk, at 326--neither did the

delegates to Montana's Constitutional Convention attempt to circumscribe the right

to privacy. Rather the Bill of Rights Committee proposed "a broad provision . . . to

permit flexibility to the courts in resolving the tensions between public interest and

privacy." Montana Constitutional Convention, Committee Proposals, February 22,

1972, pp. 632-33. As Delegate Campbell noted:

We had much discussion before [the Bill of Rights Committee], and why not try to

define the right, to put in specific examples. But it was our feeling that once you do

that, you are running a risk that you may eliminate other areas in the future which

may be developed by the court.

Montana Constitutional Convention, Verbatim Transcript, March 9, 1972, p. 1851.

In truth, that the Convention delegates deliberately drafted a broad and undefined

right of "individual"5 privacy was more a testament to and culmination of

Montanans' continuous and zealous protection of a core sphere of personal

autonomy and dignity than it was an attempt to create a greater right than that which

already existed by historical precedent. See William C. Rava, Toward a Historical

Understanding of Montana's Privacy Provisions, 61 Alb. L. Rev. 1681, 1716-17

(1998).

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¶37.Yet, defining personal autonomy has and continues to challenge courts,

philosophers and authors. For example, the United States Supreme Court has stated

that the right involves "intimate and personal choices" that concern "the right to

define one's own concept of existence, of meaning, of the universe, and of the mystery

of human life," Planned Parenthood v. Casey (1992), 505 U.S. 833, 851, 112 S.Ct.

2791, 2807, 120 L.Ed.2d 674. It may also be that, as Fisk suggests, personal autonomy

encompasses

[t]he complex human capacities that . . . include language, self-consciousness,

memory, logical relations, empirical reasoning about beliefs and their validity

(human intelligence), and the capacity to use normative principles . . . [and] . . .

rational choice, to decide which among several ends may be most effectively and

coherently realized.

Fisk, at 327 (quoting David A. J. Richards, Sex, Drugs, Death and the Law 8

(1982)). Or, more simply, as John Stuart Mill stated: "Over himself, over his own

body and mind, the individual is sovereign." Mill, On Liberty (quoted in Thor v.

Superior Court (Cal. 1993), 855 P.2d 375, 380).

¶38.Attempts to define this right notwithstanding, we conclude that, while it may not

be absolute, no final boundaries can be drawn around the personal autonomy

component of the right of individual privacy. It is, at one and the same time, as

narrow as is necessary to protect against a specific unlawful infringement of

individual dignity and personal autonomy by the government--as in Gryczan--and as

broad as are the State's ever innovative attempts to dictate in matters of conscience,

to define individual values, and to condemn those found to be socially repugnant or

politically unpopular.

III.

¶39.And that brings us to the matter at bar: broadly, the right of each individual to

make medical judgments affecting her or his bodily integrity and health in

partnership with a chosen health care provider free from the interference of the

government; and, more narrowly, a woman's right to seek and obtain pre-viability

abortion services. The former is protected under the personal autonomy component

of the fundamental right of individual privacy set out in Article II, Section 10 of the

Montana Constitution. The latter--procreative autonomy--is a protected form of

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personal autonomy. Since the primary focus of this case is the latter, we begin with

that.

¶40.There is no doubt that a woman's right to choose to have an abortion before fetal

viability and to obtain it without "undue interference" or "undue burden" from the

state is protected under the federal constitution. Planned Parenthood, 505 U.S. at 846,

112 S.Ct. at 2804. This federal constitutional right is grounded in privacy and is

protected under the Due Process Clause of the Fourteenth Amendment. Roe, 410 U.S.

at 153, 93 S.Ct. at 727; Planned Parenthood, 505 U.S. at 846, 112 S.Ct. at 2804.

¶41.Notwithstanding, and independently of the federal constitution, where the right

of individual privacy is implicated, Montana's Constitution affords significantly

broader protection than does the federal constitution. Gryczan, 283 Mont. at 448, 942

P.2d at 121 (citation omitted). Article II, Section 10, requires more than that the

State simply not impose an undue burden on a person's exercise of his or her right of

individual privacy. Rather, under Montana's Constitution, the government must

demonstrate a "compelling state interest" for infringing this right.6 Gryczan, 283

Mont. at 449, 942 P.2d at 122 (citation omitted).

¶42.Judge Sherlock determined that "if the right to privacy includes anything, it

includes the decision of a woman whether or not to beget or bear a child . . . [and it]

encompasses a woman's choice of whether or not to end her pregnancy." The court

was correct in this statement of the law as derived from federal authorities. See

Eisenstadt v. Baird (1972), 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349;

Roe, 410 U.S. at 153, 93 S.Ct. at 727. Facially, then, procreative autonomy being

grounded in the right of privacy, there is no reason why this right would not also be

encompassed within the broader personal autonomy protections afforded by the

fundamental right of individual privacy guaranteed by Article II, Section 10 of the

Montana Constitution.

¶43.The State in this case disagrees, however. Rather, it contends that Montana's

Constitution does not protect women's right to obtain a pre-viability abortion and

that this right is subject to legislative determination and regulation within the

parameters of the weaker protections afforded by the federal constitution and

federal law. The State argues that Article II, Section 10, excepts a woman's choice to

obtain a pre-viability abortion because of the Constitutional Convention's rejection

of Delegate Kelleher's attempt to confer constitutionally protected status on a fetus at

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the time of conception. The government is wrong.

¶44.Significantly, the Convention determined not to deal with abortion in the Bill

[Declaration] of Rights "at this time" and rather chose to leave the matter to the

legislature because of the historical debate as to "when a person becomes a person."

See comments of Delegate Dahood, Montana Constitutional Convention, Verbatim

Transcript, March 7, 1972, p. 1640. Roe, handed down a year after the Convention,

resolved this debate from the legal standpoint, concluding that a fetus does not enjoy

a constitutionally protected status--i.e., that a fetus is not a constitutional person--

until "viability" (at about 26 weeks or the third trimester). See Roe, 410 U.S. at 160,

162-65, 93 S.Ct. at 730-33; Ronald Dworkin, Freedom's Law: The Moral Reading of

the American Constitution 87-90 (1996) (hereafter, Dworkin, Freedom).

¶45.Importantly, there is nothing in the Constitutional Convention debates which

would logically lead to the conclusion that Article II, Section 10, does not protect,

generally, the autonomy of the individual to make personal medical decisions and to

seek medical care in partnership with a chosen health care provider free of

government interference. Nor is there any reason to conclude, in light of Roe and

post-Roe cases, that a woman's right to obtain a pre-viability abortion--part and

parcel of her right of personal/procreative autonomy--likewise would not be

encompassed within the protection of Montana's constitutional right of individual

privacy. In fact, given the delegates' overriding concern that government not be

allowed to interfere in matters generally considered private, and given the delegates'

specific determination to adopt a broad and undefined right of individual privacy

grounded in Montana's historical tradition of protecting personal autonomy and

dignity, the opposite conclusion must be reached.

¶46.This determination is further supported by the Bill of Rights Committee's

favorable reference to Griswold v. Connecticut, underlying its determination that the

judicially-recognized right of privacy be elevated to explicit constitutional status. See

Montana Constitutional Convention, Committee Proposals, February 22, 1972, p.

632. Griswold acknowledged the privacy interest inherent in contraception and

procreation. Griswold, 381 U.S. at 485-86, 85 S.Ct. at 1162. Moreover, Griswold has

been recognized to protect both "the individual interest in avoiding [accumulation

and] disclosure of personal matters, and . . . the interest in independence in making

certain kinds of important [personal] decisions," Whalen v. Roe (1977), 429 U.S. 589,

599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, including those "relating to marriage,

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procreation, contraception, family relationships, and child rearing and education,"

Paul v. Davis (1976), 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405. See

Elison, at 7.

¶47.Similarly, in the floor debates, Delegate Campbell, emphasizing Montana's

historical commitment to the right of privacy and arguing for the core "right to be

let alone," cited Griswold.7 These references to Griswold in the proceedings of the

Constitutional Convention are important because

Griswold and [] other [federal] privacy decisions can be justified only on the

presumption that decisions affecting marriage and childbirth are so intimate and

personal that people must in principle be allowed to make these decisions for

themselves, consulting their own preferences and convictions, rather than having

society impose its collective decision on them.

Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, And

Individual Freedom 106 (First Vintage Books ed. 1994) (hereafter, Dworkin, Life's

Dominion). Moreover,

[t]he Supreme Court, in denying the state the specific power to make contraception

criminal, presupposed the more general principle of procreative autonomy. . . . The

law's integrity demands that the principles necessary to support an authoritative set

of judicial decisions must be accepted in other contexts as well. It might seem an

appealing political compromise to apply the principle of procreative autonomy to

contraception, which almost no one now thinks states can forbid, but not to abortion,

which powerful constituencies violently oppose. But the point of integrity--the point

of the law itself--is exactly to rule out political compromises of that kind.

Dworkin, Life's Dominion, at 158.

¶48.Accordingly, given Montana's broad, yet undefined, concept of individual

privacy--historically predating even the 1972 Constitution; given the Constitutional

Convention's unmistakable intent to textualize this tradition by explicitly protecting

citizens from legislation and governmental practices that interfere with the autonomy

of each individual to make decisions in matters generally considered private; given

the Convention's reliance on Griswold; and given jurisprudential recognition,

following the close of the Constitutional Convention, of a woman's right to seek and

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obtain a pre-viability abortion, it is clear that the procreative autonomy component

of personal autonomy is protected by Montana's constitutional right of individual

privacy found at Article II, Section 10.

¶49.Implicit in this right of procreative autonomy is a woman's moral right and

moral responsibility to decide, up to the point of fetal viability, what her pregnancy

demands of her in the context of her individual values, her beliefs as to the sanctity of

life, and her personal situation. Moreover, the State has no more compelling interest

or constitutional justification for interfering with the exercise of this right if the

woman chooses to terminate her pre-viability pregnancy than it would if she chose to

carry the fetus to term. Recognition of this point is important--especially for those

who reject abortion. For if the State has the power to infringe the right of procreative

autonomy in favor of birth, then, necessarily, it also has the power to require

abortion under some circumstances. If one accepts the former, then imposition of the

latter is no more remote than a change in prevailing political ideology.

¶50.And, if the reader finds this farfetched or shocking, consider that in 1927 the

United States Supreme Court ruled that eugenics by involuntary sterilization of the

mentally retarded was constitutionally permissible. According to that Court, "[i]t is

better for all the world, if instead of waiting to execute degenerate offspring for

crime, or to let them starve for their imbecility, society can prevent those who are

manifestly unfit from continuing their kind." Buck v. Bell (1927), 274 U.S. 200, 207,

47 S.Ct. 584, 585, 71 L.Ed. 1000. Or, consider the United States Congressional Office

of Technology Assessment's 1988 discussion of "Social and Ethical Considerations"

raised by the Human Genome Project:

Human mating that proceeds without the use of genetic data about the risks of

transmitting diseases will produce greater mortality and medical costs than if

carriers of potentially deleterious genes are alerted to their status and encouraged to

mate with noncarriers or to use artificial insemination or other reproductive

strategies.

See George J. Annas, Standard of Care: The Law of American Bioethics 156 (1993)

(quoting U.S. Congress, Office of Technology Assessment, Mapping Our Genes:

Genome Projects, How Big, How Fast? 84 (U.S. Govt. Print Office 1988)).

¶51.Unless fundamental constitutional rights--procreative autonomy being the

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present example--are grounded in something more substantial than the prevailing

political winds, Huxley's Brave New World or Orwell's 1984 will always be as close as

the next election. Fortunately, as demonstrated above, the roots of Montana's

constitutional right of procreative autonomy go much deeper and are firmly

embedded in the right of individual privacy guaranteed under Article II, Section 10

of the Montana Constitution.

IV.

¶52.Similarly, in the broader context of one's right to choose or refuse medical

treatment, we must likewise conclude that these sorts of decisions are protected

under the personal autonomy component of the individual privacy guarantees of

Montana's Constitution. And properly so.

¶53.Few matters more directly implicate personal autonomy and individual privacy

than medical judgments affecting one's bodily integrity and health. Joel Feinberg, a

philosophy professor at the University of Arizona, describes the interrelationship

between privacy and personal or "bodily" autonomy as follows:

After all, we speak of "bodily autonomy," and acknowledge its violation in cases of

assault, battery, rape, and so on. But surely our total autonomy includes more than

simply our bodily "territory," and even in respect to it, more is involved than simple

immunity to uninvited contacts and invasions. Not only is my bodily autonomy

violated by a surgical operation ("invasion") imposed on me against my will; it is

also violated in some circumstances by the withholding of the physical treatment I

request (when due allowance has been made for the personal autonomy of the

parties of whom the request is made). For to say that I am sovereign over my bodily

territory is to say that I, and I alone, decide (so long as I am capable of deciding)

what goes on there. My authority is a discretionary competence, an authority to

choose and make decisions.

3 Joel Feinberg, Harm to Self 53 (1986). See also Fisk, at 326-27.

¶54.Indeed, medical treatment decisions

are, to an extraordinary degree, intrinsically personal. It is the individual making the

decision, and no one else, who lives with the pain and disease. It is the individual

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making the decision, and no one else, who must undergo or forego the treatment.

And it is the individual making the decision, and no one else, who, if he or she

survives, must live with the results of that decision. One's health is a uniquely

personal possession. The decision of how to treat that possession is of a no less

personal nature.

. . . The decision can either produce or eliminate physical, psychological, and

emotional ruin. It can destroy one's economic stability. It is, for some, the difference

between a life of pain and a life of pleasure. It is, for others, the difference between

life and death.

Andrews v. Ballard (D.C. S.D.Tex. 1980), 498 F. Supp. 1038, 1047 (holding that the

decision to obtain or reject medical treatment is encompassed by the right of privacy

and that, absent evidence showing that they were narrowly drawn to achieve a

compelling state interest, Texas regulations requiring acupuncturists to be licensed

physicians imposed a burden on and significantly interfered with the patient's

decision to obtain acupuncture treatment and were, therefore, unconstitutional).8

¶55.Recognition of these inherent rights to make medical judgments affecting one's

bodily integrity and health and the right to choose and to refuse medical treatment

are certainly not creatures of recent invention, however. Rather, like America's

historical legal tradition acknowledging the fundamental common law right of self-

determination, acceptance of the right to make personal medical decisions as

inherent in personal autonomy is a long-standing and an integral part of this

country's jurisprudence.

¶56.Over a century ago, the Supreme Court observed:

No right is held more sacred, or is more carefully guarded by the common law, than

the right of every individual to the possession and control of his own person, free

from all restraint or interference of others, unless by clear and unquestionable

authority of law.

Union Pacific Railway Co. v. Botsford (1891), 141 U.S. 250, 251, 11 S.Ct. 1000,

1001, 35 L.Ed. 734. Eighty-five years ago, Justice Cardozo noted that, "[e]very

human being of adult years and sound mind has a right to determine what shall be

done with his own body." Schloendorff v. Society of New York Hosp. (1914), 105 N.

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E. 92, 93, overruled in part by Bing v. Thunig, (N.Y. 1957), 143 N.E.2d 3. And,

more recently, the Supreme Court has reaffirmed that the right to control

fundamental medical decisions is an aspect of the right of self-determination and

personal autonomy that is "deeply rooted in this Nation's history and tradition."

Moore v. City of East Cleveland (1977), 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52

L.Ed.2d 531. See also Matter of Quinlan (1976), 355 A.2d 647.

¶57.In the context of "informed consent" cases, Montana, too, has recognized that

each individual is the sovereign of his or her own body. Collins v. Itoh (1972), 160

Mont. 461, 467, 503 P.2d 36, 40 ("Each man is considered master of his own body

and may request or prohibit even lifesaving surgery. The law will not allow a

physician to substitute his own judgment, no matter how well founded, for that of his

patient.") (citing Natanson v. Kline (Kan. 1960), 350 P.2d 1093, 1104). See also

Dworkin, Freedom, at 134 ("The law of most American states seems settled that the

autonomy of a competent patient will be decisive . . . and that doctors may not treat

him against his will either for his sake or for the sake of some social interest in

keeping him alive").

V.

¶58.Acknowledging these precepts of patient autonomy, however, is not to deny the

obvious--that medical decisions affecting one's bodily integrity and health must often

and necessarily be made in partnership with a health care provider. In those

instances, the individual typically seeks out and may consent to the most risky and

intimate invasions of body and psyche, largely upon her or his personal trust in the

education, training, experience, advice, and professional integrity of the health care

provider he or she has chosen. This truism points up the seriousness of the

infringement of personal autonomy and privacy that accompanies the government

usurping, through laws or regulations which dictate how and by whom a specific

medical procedure is to be performed, the patient's own informed health care

decisions made in partnership with his or her chosen health care provider.

¶59.Certainly, this right of choice in making personal health care decisions and in

exercising personal autonomy is not without limits. In narrowly defined instances the

state, by clear and convincing evidence, may demonstrate a compelling interest in

and obligation to legislate or regulate to preserve the safety, health and welfare of a

particular class of patients or the general public from a medically-acknowledged,

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bona fide health risk. Subject to this narrow qualification, however, the legislature

has neither a legitimate presence nor voice in the patient/health care provider

relationship superior to the patient's right of personal autonomy which protects that

relationship from infringement by the state.

¶60.Worse, when, as in the case at bar, the legislature thrusts itself into this protected

zone of individual privacy under the guise of protecting the patient's health, but, in

reality, does so because of prevailing political ideology and the unrelenting pressure

from individuals and organizations promoting their own beliefs and values, then the

state's infringement of personal autonomy is not only constitutionally impermissible,

it is, as well, intellectually and morally indefensible.

¶61.Long ago, this Court declared that "the State Constitution is a limitation upon

the power of the legislature and not a grant of power to that body." State v. Aronson

(1957), 132 Mont. 120, 127, 314 P.2d 849, 852 (citing State ex rel. Dufresne v. Leslie

(1935), 100 Mont. 449, 50 P.2d 959). Just as the government has no business in the

bedrooms of consenting adults, Gryczan, 283 Mont at 450, 942 P.2d at 122, neither

does it have any business in the treatment rooms of their health care providers,

except under the very narrowly defined circumstances referred to above.

¶62.Simply put, except in the face of a medically-acknowledged, bona fide health risk,

clearly and convincingly demonstrated, the legislature has no interest, much less a

compelling one, to justify its interference with an individual's fundamental privacy

right to obtain a particular lawful medical procedure from a health care provider

that has been determined by the medical community to be competent to provide that

service and who has been licensed to do so. To this end, it also logically and

necessarily follows that legal standards for medical practice and procedure cannot be

based on political ideology, but, rather, must be grounded in the methods and

procedures of science and in the collective professional judgment, knowledge and

experience of the medical community acting through the state's medical examining

and licensing authorities.

VI.

¶63.The case at bar, unfortunately, exemplifies the gross violation of these principles.

Based upon P.A. Cahill's education, training and experience, the Board of Medical

Examiners, in its professional judgment, determined that, under the supervision of a

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licensed physician, she was competent to perform certain types of abortions and

other even more risky medical procedures. In the District Court, the government

failed utterly to demonstrate why this determination was wrong or that the State had

a compelling interest for effectively infringing the right of procreative autonomy of

women to obtain a pre-viability abortion and their right of personal autonomy to

choose P.A. Cahill, under the supervision of Dr. Armstrong, to perform this lawful

medical procedure.

¶64.Rather, the record shows that the legislature chose to prohibit P.A. Cahill from

performing abortions, yet made no attempt to prohibit her from performing other

more risky medical procedures such as uncomplicated deliveries of babies9, inserting

IUDs, and prescribing and administering most drugs. The record also shows that the

legislature chose to prohibit P.A. Cahill from executing various procedures at the

direction of the doctor performing a medical abortion, yet did not prohibit registered

nurses or others with less training than P.A. Cahill from executing those same

procedures. The record shows that P.A. Cahill has been performing abortions with

the approval of the Montana Board of Medical Examiners since 1983; that she has

performed approximately 3,000 abortions; that she has never been sued for

malpractice or disciplined; and that Dr. Armstrong's rate of complications for

patients obtaining abortions from him is the same as the rate for patients obtaining

abortions from P.A. Cahill.10 The record shows, and Judge Sherlock found, that "[t]

here is simply no evidence to support the contention that this practice by Cahill and

Armstrong in any way endangers women's health." In short, the record shows that

"protecting women's health" served as little more than a rhetorical guise for

enacting the 1995 amendments to § 37-20-103, MCA, and § 50-20-109, MCA, and

that this legislation was not justified by any constitutionally legitimate interest of the

State, compelling or otherwise.

¶65.Indeed, the history of the 1995 amendments to § 37-20-103, MCA, and § 50-20-

109, MCA, and the record of this case demonstrate how unrelenting pressure from

individuals and organizations promoting their own particular values influence

politicians to legislate, often via the back door, in matters of personal conscience,

belief and choice and, concomitantly, infringe the zone of personal autonomy and

procreative autonomy protected by the right of individual privacy. The reality of this

case is that, while the legislature could not make pre-viability abortions facially

unlawful, it could, and did--under the facade of "protecting women's health" and the

lesser "undue burden" test of Planned Parenthood--attempt to make it as difficult, as

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inconvenient and as costly as possible for women to exercise their right to obtain,

from the health care provider of their choice,11 a specific medical procedure

protected by the Due Process Clause of the federal constitution and, independently of

the Fourteenth Amendment, protected by their greater right of individual privacy

under Article II, Section 10 of the Montana Constitution. Furthermore, that the 1995

amendments to § 37-20-103, MCA, and § 50-20-109, MCA, may have been narrowly

drawn is irrelevant, where, as here, there was no predicate compelling state interest

justifying the amendments in the first place.

¶66.There is simply no evidence in the record of this case that laws requiring pre-

viability abortions be performed only by a physician to the exclusion of a trained,

experienced and medically competent physician assistant-certified, working under

the supervision of a licensed physician, are necessary to protect the life, health or

safety of women in this State. Indeed, there is overwhelming evidence to the contrary

and that the 1995 amendments to § 37-20-103, MCA, and § 50-20-109, MCA, were

the product of and grounded in nothing other than the divisive and vocal politics of

abortion.

VII.

A.

¶67.That said, we close with two final observations. First, from our foregoing

discussion, it should be apparent that this opinion is about the government's

infringement of certain fundamental rights of individual privacy--personal and

procreative autonomy--guaranteed under Article II, Section 10 of the Montana

Constitution. From this same discussion, it should be equally obvious, what this

opinion is not about. For the reasons hereafter set forth, the latter needs to be

underscored, nonetheless. This opinion is not a comment, pro or con, on the merits of

sectarian doctrine or on the deep and sincerely held personal beliefs, values and

convictions of those who either favor abortion or who oppose it on moral or religious

grounds.

¶68.Unfortunately, however, it is these doctrines, values, beliefs and convictions

which invariably fuel the hurricane of legal debate on this issue. And that, of course,

is precisely the problem. The government can demonstrate no compelling interest for

legislating on the basis of any sectarian doctrine nor may the state infringe individual

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liberty and personal autonomy because of majoritarian demands to safeguard some

intrinsic value unrelated to the protection of the rights and interests of persons with

constitutional status. The fundamental right to personal and procreative autonomy

and, in the broader sense, to individual privacy, prohibits the government from

dictating, approving or condemning values, beliefs and matters ultimately involving

individual conscience, where opinions about the nature of such values and beliefs are

seriously divided; where, at their core, such values and beliefs reflect essentially

religious convictions that are fundamental to moral personality; and where the

government's decision has a greatly disparate impact on the persons whose

individual beliefs and personal commitments are displaced by the State's legislated

values. See Dworkin, Life's Dominion, at 157; Dworkin, Freedom, at 101-102.

¶69.That is not to say that matters involving religious values and individual

conscience are not appropriately addressed by churches, other organizations and

individuals in both sectarian and secular forums. Indeed, such expression aimed at

changing individual values and convictions and at fostering respect for the intrinsic

value of all life is protected by the First Amendment and, independently of the

federal constitution, by Article II, Sections 5 and 7 of the Montana Constitution.

However the doctrine of separation of church and state which is also embodied in the

First Amendment and, independently, in Article II, Section 5, makes theology an

impermissible basis on which to make law or interpret the Constitution. Religious

arguments do not count as legal arguments. See Dworkin, Life's Dominion, at 110.

¶70.For this reason, and without abandoning their own personal beliefs and

convictions, those in government who make, execute and interpret the law and who

are sworn to support, protect and defend the Constitution may not, except in

violation of their oaths of office, succumb to the pressure of those who would engraft

the sectarian tenets and personal values of some onto the laws which govern all.

B.

¶71.Our second observation concerns the manner in which the matters discussed in

this opinion arise under Montana's Constitution. In keeping with the way in which

the issues were argued to and decided by the trial court, we have directed our focus

in this opinion to the right of individual privacy found at Article II, Section 10. It

bears noting, however, that Montana's Constitution, and especially the Declaration

of Rights, is not simply a cook book of disconnected and discrete rules written with

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the vitality of an automobile insurance policy. Rather, our Constitution, and in

particular its Declaration of Rights, encompasses a cohesive set of principles,

carefully drafted and committed to an abstract ideal of just government. It is a

compact of overlapping and redundant rights and guarantees. See Dworkin,

Freedom, at 110; Dworkin, Life's Dominion, at 166. Thus, the rights of personal and

procreative autonomy at issue here also find protection in more than just Article II,

Section 10. Without attempting to exhaustively plumb the depths of the Constitution

in this regard, several provisions of the Declaration of Rights deserve mention.

¶72 Respect for the dignity of each individual--a fundamental right, protected by

Article II, Section 4 of the Montana Constitution--demands that people have for

themselves the moral right and moral responsibility to confront the most

fundamental questions about the meaning and value of their own lives and the

intrinsic value of life in general, answering to their own consciences and convictions.

Equal protection, also protected by Article II, Section 4, requires that people have an

equal right to form and to follow their own values in profoundly spiritual matters.

See Dworkin, Life's Dominion, at 165-67. Article II, Section 3, guarantees each

person the inalienable right to seek safety, health and happiness in all lawful ways--i.

e., in the context of this case, the right to seek and obtain medical care from a chosen

health care provider and to make personal judgments affecting one's own health and

bodily integrity without government interference. As already noted, Article II,

Sections 5 and 7, protect, respectively, the freedom to accept or reject any religious

doctrine, including those about abortion, and the right to express one's opinion in all

lawful ways and forums. The right to due process of law, Article II, Section 17,

protects those rights--including rights of personal and procreative autonomy--

inherent in the historical concept of "ordered liberty." Finally, the right of individual

privacy guaranteed by Article II, Section 10, requires the government to leave us

alone in all these most personal and private matters.

¶73.Having made this observation, though, we must also note that each person's

enjoyment of these various constitutional rights is not without a corresponding cost.

In fact, Article II, Section 3, requires that those enjoying the inalienable rights set

forth in that section "recognize corresponding responsibilities." Whatever may be

this cost or corresponding responsibility, however, it does not include the

demonization of women who choose to terminate their pregnancies at a time the law

allows nor does it mandate the criminalization of providers of abortion services to

these women. Likewise, this cost does not require the denigration and condemnation

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of those who, as a matter of their own good consciences, either favor or reject

abortion. Most importantly, this cost does not permit the government's infringement

of personal and procreative autonomy in the name of political ideology.

¶74.Rather, the price--the corresponding responsibility--for our commitment to the

values and ideals of just government and for our enjoyment of our individual rights

protected by Montana's Constitution is simply tolerance. And indeed, that is a token

sum for, among other freedoms, the right to be let alone.

Summary

¶75.We hold that the core constitutional right infringed by the legislation at issue in

the case at bar is the fundamental right of individual privacy guaranteed to every

person under Article II, Section 10 of the Montana Constitution. We hold that the

personal autonomy component of this right broadly guarantees each individual the

right to make medical judgments affecting her or his bodily integrity and health in

partnership with a chosen health care provider free from the interference of the

government, except in very limited circumstances not at issue here. More narrowly,

we hold that Article II, Section 10, protects a woman's right of procreative

autonomy--here, the right to seek and to obtain a specific lawful medical procedure,

a pre-viability abortion, from a health care provider of her choice. We also hold that

the government has failed to demonstrate a compelling state interest for infringing

upon these rights of privacy and that, therefore, the amendments to § 37-20-103,

MCA, and § 50-20-109, MCA, enacted pursuant to Ch. 321, L. 1995, prohibiting a

physician assistant-certified from performing a pre-viability abortion under the

supervision of a licensed physician are unconstitutional under Article II, Section 10,

of the Montana Constitution.

¶76.The judgment of the District Court is affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

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/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

Justice Karla M. Gray, specially concurring.

¶77.I concur in the Court's opinion to the extent it addresses the issue before us in

this case. That is, I agree that the challenged statutory amendments are

unconstitutional because they violate a woman's right of procreative autonomy

protected by Article II, Section 10 of the Montana Constitution and the State has not

demonstrated a compelling state interest for infringing on that right. I cannot join in

other parts of the Court's opinion which, although scholarly written, are overly

broad and far outside the scope of the issue actually before us. In concluding that

Article II, Section 10 broadly guarantees each individual the right to make medical

judgments affecting his or her bodily integrity and health in partnership with a

chosen health care provider free from government interference, the Court's opinion

sweeps so broadly as to encompass and decide such issues as the right to physician-

assisted suicide and other important health and medical-related issues which simply

were not litigated in this case. I cannot agree that it is appropriate to address such

matters in this case and, indeed, it is my view that much of the Court's opinion is

dicta.

¶78.I am particularly troubled by that portion of the Court's opinion which states--

without any analysis whatsoever--that the rights of personal and procreative

autonomy at issue in this case also find protection in the individual dignity and equal

protection rights set forth in Article II, Section 4; the inalienable right to seek safety,

health and happiness in all lawful ways contained in Article II, Section 3; the

religious and speech freedoms set forth in Article II, Sections 5 and 7; and the due

process right contained in Article II, Section 17. That discussion is far beyond the

scope of this case as presented and, in any event, is totally unsupported by the Court.

While such thoughts appropriately might be included in a concurring opinion if

supported by legal analysis, it is my view that they have no place in an opinion

addressing and resolving the issue before us under the right to privacy contained in

Article II, Section 10 of the Montana Constitution.

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¶79.Finally, it is necessary to comment on those portions of the Court's opinion

which discuss the propriety of leaving the determination of standards for medical

practice in the hands of the medical community--acting through the medical

examining and licensing authorities. I generally agree with the Court's discussion in

those regards but I do not agree with any implicit notion therein that the Legislature

has no place at all in the equation. It is important to keep in mind that the practice of

medicine is a privilege, not a right, in Montana and that it is generally subject to

legislative oversight in order to protect the health, safety, and welfare of the people of

Montana. See § 37-3-101, MCA. Indeed, the Montana Board of Medical Examiners

(Board) is an entity created by the Legislature via § 2-15-1841, MCA, and given the

powers and duties set forth in § 37-3-203, MCA, for the purpose of ensuring that

medical licensees conform to appropriate standards of conduct and exercise the

privileges granted to them "in the greatest public interest." Section 37-3-302, MCA.

¶80.In discharging its oversight responsibility in the area of medical care for

Montanans, however, the Legislature has expressly provided for the licensing of

certified physician assistants who practice under the supervision of physicians

pursuant to the terms of "utilization plans" approved by the Board. See §§ 37-20-

101, 37-20-203, and 37-20-301, MCA. As provided by the Legislature, a certified

physician assistant is "a member of a health care team, approved by the board, who

provides medical services that may include

examination, diagnosis, prescription of medications, and treatment, as approved by

the board, under the supervision of a physician licensed by the board." Section 37-

20-401, MCA. The utilization plan requiring Board approval must set forth the

scope of the physician assistant's practice, and can be approved only if the physician

assistant's practice is within the scope of the training, knowledge, experience and

practice of the supervisory physician and also within the scope of the training,

knowledge, education and experience of the certified physician assistant. Sections

37-20-301(2)(c), (3)(b), and (3)(c), MCA.

¶81.In the context of the present case, I agree with the Court that, once the statutory

requirements for licensure of a certified physician assistant and for approval of the

utilization plan covering that certified physician assistant have been satisfied, the

Legislature cannot indirectly intrude into a utilization plan setting forth the scope of

practice for that physician assistant which has been approved by the medical

authorities empowered by the Legislature to do just that. Here, the Board had

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approved Cahill's utilization plan which permitted her to perform abortions, and it

was inappropriate for the Legislature to substitute its judgment for that of the Board

it created to oversee such matters involving the practice, training, knowledge,

education and experience of medical personnel.

¶82.In summary, I join in those portions of the Court's opinion which address and

resolve the issue actually before us. I do not join in those portions of the opinion

which cast too wide a net and which implicitly suggest that the Legislature has no

role at all in matters relating to the health care to be provided to the people of

Montana.

/S/ KARLA M. GRAY

Chief Justice J.A. Turnage joins in Justice Gray's foregoing special concurrence.

/S/ J. A. TURNAGE

1. In the context of this opinion, we use the generic term "health care provider" to refer to

any physician, physician assistant-certified, nurse, nurse-practitioner or other professional

who has been determined by the appropriate medical examining and licensing authority to

be competent by reason of education, training or experience, to perform the particular

medical procedure or category of procedures at issue or to provide the particular medical

service or category of services which the patient seeks from the health care provider.

2. See George J. Annas, Partial-Birth Abortion, Congress, and the Constitution, 339 The

New England Journal of Medicine 279 (1998).

3. See, for example, the federal cases of Weeks v. United States (1914), 232 U.S. 383, 34

S.Ct. 341, 58 L.Ed 652; Olmstead v. United States (1928), 277 U.S. 438, 48 S.Ct. 564, 72

L.Ed. 944 (Brandeis, J., dissenting); Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359,

93 L.Ed. 1782, overruled on other grounds by Mapp v. Ohio (1961), 367 U.S. 643, 81 S.

Ct. 1684, 6 L.Ed.2d 1081; Mapp, 367 U.S. at 650, 81 S.Ct. at 1689; Griswold, 381 U.S.

479, 85 S.Ct. 1678; Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576; and, in Montana, Samlin v. District Court (1921), 59 Mont. 600, 198 P. 362; State ex

rel. King v. District Court (1924), 70 Mont. 191, 224 P. 862; Welsh v. Roehm (1952), 125

Mont. 517, 241 P.2d 816; State v. Dess (1969), 154 Mont. 231, 462 P.2d 186; State v.

Brecht (1971), 157 Mont. 264, 485 P.2d 47, overruled on other grounds by State v. Long

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(1985), 216 Mont. 65, 700 P.2d 153.

4. In his remarks to the Constitutional Convention, Delegate Campbell referred to this

constitutional wall of separation as being "absolute". Notwithstanding, neither the United

States Supreme Court nor this Court have interpreted constitutional church/state separation

as being absolute. Both Courts have recognized that some governmental impacts on

religious freedoms is constitutionally permitted. See St. John's Lutheran Church v. State

Comp. Ins. Fund (1992), 252 Mont. 516, 523-24, 830 P.2d 1271, 1276-77 (citing Cantwell

v. State of Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and United

States v. Lee (1982), 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127).

5. A term added on the floor of the Convention. Montana Constitutional Convention,

Verbatim Transcript, March 7, 1972, pp. 1680-81.

6. We have not, heretofore, specifically defined what makes a state interest "compelling,"

rather, leaving that determination to be made case by case. Nonetheless, we agree with the

United States Supreme Court's test in the First Amendment free exercise cases, that to

demonstrate that its interest justifying infringement of a fundamental constitutional right is

"compelling" the state must show, at a minimum, some interest "of the highest order

and . . . not otherwise served," see Wisconsin v. Yoder (1972), 406 U.S. 205, 215, 92 S.Ct.

1526, 1533, 32 L.Ed.2d 15, or "the gravest abuse[], endangering [a] paramount

[government] interest[]," Thomas v. Collins (1945), 323 U.S. 516, 530, 65 S.Ct. 315, 323,

89 L.Ed. 430. See also Miller v. Catholic Diocese of Great Falls (1986), 224 Mont. 113,

116-17, 728 P.2d 794, 796 (citing Yoder). Some inkling of the Constitutional

Convention's view of how serious a situation must exist before the government has a

"compelling" interest for infringing the right of individual privacy can be gleaned from

delegate comment on electronic surveillance. There, Delegate Dahood noted that, if it

should ever be allowed at all, "electronic surveillance shall be justified only in matters

involving national security, perhaps in matters involving certain heinous federal crimes

where the situation is such that in those instances we must risk the right of individual

privacy because there is a greater purpose to be served." Montana Constitutional

Convention, Verbatim Transcript, March 7, 1972, p. 1687.

7. Delegate Campbell also referred to the 1890 law review article on privacy authored by

Samuel Warren and Louis Brandeis (The Right to Privacy, 4 Harv. L. Rev. 193, 195, 205

(1890)), which asserted that the right of privacy encompasses "[t]houghts, emotions, and

sensations" and the principle "of an inviolate personality"--concepts which deeply

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influenced the later development of American privacy jurisprudence. See Montana

Constitutional Convention, Verbatim Transcript, March 9, 1972, p. 1851; Elison, at 2-5.

8. Andrews collects the cases from various federal and state jurisdictions which have

directly addressed the question of whether the right of privacy encompasses the decision

to obtain or reject medical treatment. The "clear trend of modern authority," answers this

question in the affirmative. Andrews, 498 F.Supp. at 1048-51. Since Andrews was handed

down other jurisdictions have embraced this view. See American Academy of Pediatrics v.

Lungren (Cal. 1997), 940 P.2d 797 (statute requiring pregnant minors to secure parental

consent or judicial authorization before obtaining an abortion violated minor's privacy

right); Singletary v. Costello (Fla. Dist. Ct. App. 1996), 665 So.2d 1099 (prison inmate on

hunger strike had privacy right to refuse medical intervention);Women of the State of

Minnesota v. Gomez (Minn. 1995), 542 N.W.2d 17 (statutes that permitted use of public

funds for childbirth-related medical services, but prohibited similar use of public funds for

medical services related to therapeutic abortions, impermissibly infringed on woman's

right of privacy); In re Daniel Joseph Fiori (Pa. Super. Ct. 1995), 652 A.2d 1350 (privacy

right guarantees the right to make important personal decisions including termination of

life-sustaining treatment); Louisiana v. Perry (La. 1992), 610 So.2d 746 (state may not

violate incompetent death row prisoner's privacy right by medicating prisoner against his

will with antipsychotic drugs in order to carry out death sentence while prisoner is under

the influence of such drugs); Norwood Hospital v. Munoz (Mass. 1991), 564 N.E.2d 1017

(patient had privacy right to refuse blood transfusion); In re the Guardianship of Estelle M.

Browning (Fla. 1990), 568 So.2d 4 (surrogate or proxy may exercise privacy right for

incompetent patient and terminate patient's artificial life support as long as patient, while

competent, had expressed wish to do so); In re T.W. (Fla. 1990), 551 So.2d 1186 (privacy

right to terminate pregnancy extends to minors); McConnell v. Beverly Enterprises-Conn.,

Inc. (Conn. 1989), 553 A.2d 596 (family of terminally ill patient could exercise patient's

privacy right to removal of artificial nutrition and hydration); Gray v. Romeo (D. R.I.

1988), 697 F.Supp. 580 (patient's privacy right encompasses the right to refuse life-

sustaining medical treatment); Ragsdale v. Turnock (7th Cir. 1988), 841 F.2d 1358

(statutes requiring physicians to perform "elective abortions" only in designated facilities

impacted woman's privacy right to an abortion); United States v. Charters (4th Cir. 1987),

829 F.2d 479 (medically competent defendant has privacy right to refuse antipsychotic

medication); Rasmussen v. Fleming (Ariz. 1987), 741 P.2d 674 (public fiduciary as

guardian of nursing home patient in chronic vegetative state had authority to exercise

patient's privacy right to refuse medical treatment with regard to "do not resuscitate" and

"do not hospitalize" notations placed on patient's medical chart); Foody v. Manchester

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Memorial Hospital (Conn. Super. Ct. 1984), 482 A.2d 713 (family of semicomatose

patient could exercise patient's privacy right to discontinue use of all artificial devises

intended to continue patient's respiration and pulse); In the Matter of the Welfare of Bertha

Colyer (Wash. 1983), 660 P.2d 738 ("an adult who is incurably and terminally ill has a

constitutional right of privacy that encompasses the right to refuse treatment that serves

only to prolong the dying process"); Severns v. Wilmington Medical Center, Inc. (Del. Ch.

1980), 425 A.2d 156 (guardian of comatose patient may assert patient's privacy right to

discontinue life support).

9. Judge Sherlock noted that P.A. Cahill can still perform deliveries of babies in her status

as a physician assistant and that these deliveries have the same or greater risk than the

sorts of abortion procedures she provided. Specifically, these abortions are classified as

Risk Level 2 by the State Board of Medical Examiners while the higher Risk Level 3 is

associated with child birth.

10. As noted by the District Court, this conclusion is supported by a Vermont study

concluding that the rate of complications between abortions conducted by physicians and

those conducted by physician assistants is no different. Freedman, Jillson, Coffin and

Novick, Comparison of Complication Rates in First Trimester Abortions Performed by

Physician Assistants and Physicians, 76 American Journal of Public Health 550 (1986).

11. The insidious effect of the amendments to the statutes is even more apparent when one

recognizes that they severely limit a woman's choice to obtain an intimate, female-specific

medical procedure from a health care provider of her own gender. One can imagine the

wailing and gnashing of male teeth if a legislature dominated by women, in the "interest of

men's health," enacted a law which effectively guaranteed that vasectomies and prostate

examinations would only be performed by female physicians.

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