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The principal pre-Roe statutes prohibited performance of an abortion unless the procedure was “necessary to preserve the life of the mother,”1 and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).2  Pursuant to Roe v. Wade, these statutes were declared unconstitutional by a three-judge federal district court in Doe v. Woodahl,3 and were later repealed.4  The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade.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.5


Finally, 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).6


1 Mont. Code Ann. § 94-401 (1969), later renumbered as § 94-5-611 by 1973 Mont. Laws ch. 513, § 29.

2 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 statute.

3 360 F.Supp. 20 (D. Mont. 1973).

4 1977 Mont. Laws 1130, 1171-72, ch. 359, § 77.

5 See Mont. Code Ann.§ 50-20-109 (2003).

6 See Armstrong v. State of Montana, 989 P.2d 364 (Mont. 1999) (striking down statute prohibiting non-physicians from performing abortions).


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May be reprinted without permission but with attribution to the Life Legal Defense Fund.