by Darrell Ehrlick, Daily Montanan
February 10, 2025
Just a little more than 90 days ago, Montana voters soundly approved a state constitutional amendment that enshrined the right to an abortion in state law. A bill championed by Montana House Rep. Lee Deming, R-Laurel, would essentially put the question again to voters in 2026, and many opponents told lawmakers they worried this new “fetal personhood” bill would go further than any other legislation in the country — and nullify Constitutional Initiative 128.
House Bill 316 would require two-thirds of the Legislature’s support in order to place the question before Montana residents. The bill would ask Montanans if they support a “personhood” amendment, which would confer rights to an embryo upon conception, essentially ruling out the use of in vitro fertilization or other methods without risking criminal penalties.
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Others who testified at the House Judiciary Committee’s legislation last Wednesday also worried that the broad and vague language could wreak havoc because of unintended consequences, including end-of-life decisions, known as “advance care directives.”
In November 2024, Montana voters approved CI-128 by more than a 58% margin, which enshrines the constitutional right to an abortion and privacy in medical decisions. Abortion had been legal in Montana, supported by a 1999 Montana Supreme Court ruling that found that Montanans’ right to an abortion is tied to the constitutional right to privacy in the Montana Constitution. However, CI-128 now guarantees the right to an abortion as a stand-alone right.
HB 316 was approved in committee along party lines, 12-to-8, and now heads to the full Montana House floor.
Deming acknowledged that Montanans recently approved CI-128, but likely didn’t understand that it would protect late-term abortions, something that Montana medical providers said do not happen in the state, and rarely happen, overwhelmingly because of medical complications.
He also told fellow lawmakers that if the thousands of abortions performed in the state had been illegal, maybe CI-128 wouldn’t have passed.
“If an amendment can take rights away — and this is a hypothetical, so please bear with me — why not use a bullet to kill all those people 70 or older? After all, they’re generally a drain on their families and society and some are inconvenient to have around. I see no material difference between that hypothetical and the thousands of abortions performed in Montana,” Deming said.
Through the testimony, many lawmakers and residents testified that the legislation would also mean halting IVF.
“My heart breaks for those who cannot conceive naturally,” Deming said. “If there was a way to accomplish it without killing so many human beings, but I don’t have the solution.”
Much of the testimony surround HB 316 fell along the debate lines of CI-128.
“Conception is not a theoretical or philosophical,” said Derek Oestreicher of the Montana Family Foundation. “It’s a scientifically verifiable event that begins at conception.”
Dr. Annie Bukacek, a medical professional who also sits on the Montana Public Service Commission, spoke in favor of the bill, and said it was right to target IVF.
“IVF is where untold human lives are destroyed to bring about one life, with enormous cash profits for individual clinics,” she said.
Resident Dick Pence testified that human species were the only animals who appear to do something other than protect their young.
“What other female animal on the plant wouldn’t give their life to protect their young? This is not true for the women who claim it is their right to choose,” Pence said. “The self-centeredness of those women.”
Ann Angus of Bozeman testified that she is expecting a child in June, thanks to IVF, and asked lawmakers to stop HB 316.
“I’ve always wanted kids, and I am pregnant thanks to IVF,” she said.
Residents also voiced concerns about some of the “unintended consequences” of the bill, including patients who developed complications or started to miscarry — or the medical providers who would have to attend to them. Some worried that, like in states that had passed similar legislation, Montana would lose medical providers. A shortage of medical providers is a perennial problem in the rural state.
Others worried that language in the bill that talked about “any stage of life” or condition would place advance directives, often used by older patients, many with terminal conditions, at risk. HB 316 also offers no “carve-outs” or protections in cases of rape or incest.
“It will drive healthcare providers out of state,” said Amber Nichols, who testified as a resident and scientist. “It will disregard the majority of voters have time and time again supported access to abortion in our state. It will signal to daughters, nieces, sisters, friends and neighbors that healthcare decisions are not theirs alone.”
Ella Smith, who spoke on behalf of Blue Mountain Clinic, one of the state’s healthcare providers that has managed abortions, said that “personhood” bills like Deming’s are no longer theoretical about consequences for healthcare providers.
“Doctors are being criminalized by not providing care in life-threatening situations,” she said.
She said that pregnancies can become emergencies quickly, but some providers have been unwilling to intervene until later, risking complications and even a death of a patient.
“We don’t have to guess what happens when laws like this exist — the evidence is all around us,” Smith said. “The sponsors of this legislation ignore the severe harm which they inflict. Women have died because they lived in a state with comparable laws to HB 316 exist.”
Elizabeth Brenneman from the Coalition Against Domestic and Sexual Violence said she worried about pregnant women being criminalized under this law for using drugs or not seeking medical attention.
Other opponents pointed out that a similar measure to get the initiative before voters has failed three times during the signature-gathering process, as well as seven times at the Legislature.
Keegan Nashan of Livingston said she drove to places like Billings, Wibaux and even the Miles City Bucking Horse sale to gather signatures for CI-128. She said that while not all Montanans agreed with abortion, she kept on hearing the message over and over again.
“Ultimately, what is absolutely certain is that Montanans don’t think it’s any of the government’s business,” she said.
Robin Turner, the staff attorney at Legal Voice, said that beyond the challenges of abortion, IVF and healthcare access, she said the bill is problematic from a legal standpoint.
“It puts the pregnant person at odds with the fetus and diminishes the right of the pregnant person,” she said.
She told committee members that it’s unclear who gets to assert the rights of the fetus. Could an abusive spouse, grandparents, Child Protective Services or the police invoke the rights, she wondered.
“This would mean there’s no end to what the state can or can’t do,” Turner said. “Women deserve the final say in what they can do with their bodies and medical care.”
Martha Fuller, the president and CEO of Planned Parenthood of Montana, urged lawmakers to consider the fear such a law will create for pregnant women. She said women may delay seeking medical care, especially if they think they’ll be blamed for problems or accused of “self-managed abortions.”
“Anyone who has been pregnant knows there’s a long, often conflicting list of things that you should or shouldn’t do,” she said.
Fuller said that meanwhile, providers may be reluctant to act, for fear of being criminalized for doing the wrong thing.
“Actions often need to be taken quickly so the chilling effect of people seeking care for pregnancies they wanted and intended to keep could keep them from addressing complications and could be chilling or dangerous,” Fuller said.
While the topic of the bill was “personhood” and centered on pregnant women and fetuses, it often veered into other weighty topics, from slavery to theology.
Oestreicher said that before the Civil War, slaves were also not given personhood rights, and this bill would continue to guarantee that all people were afforded equal protection.
Rep. SJ Howell, D-Missoula, asked questions of Deming, especially how could the rights of the mother and the rights of the child be separated. For example, Howell questioned if a woman incarcerated for theft could use pregnancy as a means to escape criminal punishment because the food or care in prison or jail was inadequate.
“I’m concerned about how we really address full personhood,” Howell said. “How do we follow the law?”
Deming replied that his interest was in protecting life from conception to natural death.
“It would be two people under the bill, they just occupy the same space,” Deming said.
Rep. Ed Stafman, D-Bozeman, who is both a trained rabbi and attorney, wondered if HB 316 stepped on his religious rights, because of differences centering on when the soul enters the body.
“Why should we enshrine your religious beliefs and exclude mine?” Stafman asked Deming.
“I didn’t mention religious rights,” Deming said. “I’m making a legal argument. I didn’t bring up religion. You were the one who brought that up.”
“Legally, then, when does the soul enter the body? Can you give me a legal argument?” he asked Deming.
“I think that’s irrelevant. It doesn’t matter when the soul enters the body. Of course it matters to you, and I as far as this goes. It’s not in the bill. It wasn’t brought up. It has nothing to do with this bill,” Deming replied.
Stafman took a different line of questioning.
“Twenty percent of pregnancies end in miscarriage. And if you’re saying that life begins at conception, and if 20% of them end in miscarriage, doesn’t that make God a mass murderer?” Stafman asked.
“I have to say that I object to that question,” Deming said. “And, no.”
Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com.