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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