principal pre-Roe statutes prohibited performance of
an abortion unless the procedure was “necessary to preserve
the life of the mother,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). Pursuant
to Roe v. Wade, these statutes were declared unconstitutional
by a three-judge federal district court in Doe v. Woodahl, and were
later repealed. The
pre-Roe statutes would not be revived by a decision
overruling Roe v. Wade. Abortions could be performed
for any reason before viability. Under a separate statute,
however, abortions after viability could be performed only
to save the life of the pregnant woman or to prevent substantial
and irreversible impairment of a major bodily function.
regardless of Roe, any attempt to prohibit abortion
(at least before viability) in Montana would be precluded by
the Montana Supreme Court’s decision recognizing a fundamental
right to abortion on state constitutional grounds (privacy).
Mont. Code Ann. § 94-401 (1969), later
renumbered as § 94-5-611 by 1973 Mont. Laws ch. 513, § 29.
Mont. Code Ann. § 94-402 (1969), later
renumbered as § 94-5-612 by 1973 Mont. Laws 1335, 1416-17,
ch. 513, § 29. No prosecutions were reported under this
20 (D. Mont. 1973).
Laws 1130, 1171-72, ch. 359, § 77.
Code Ann.§ 50-20-109 (2003).
Armstrong v. State of Montana, 989 P.2d 364 (Mont.
1999) (striking down statute prohibiting non-physicians
from performing abortions).