Yes, abortion is legal in Montana. State law permits abortion through fetal viability, which Montana statute presumes begins at 24 weeks, and the procedure is protected by both the Montana Constitution’s privacy clause and a 2024 voter-approved amendment that took effect on July 1, 2025. After viability, abortion is allowed when a treating provider determines it is necessary to protect the patient’s life or health.
What Montana Law Currently Allows
A person in Montana can obtain an abortion during the first and second trimesters without a waiting period, without mandatory counseling scripts, and without parental consent if they are a minor. Care can be provided by a physician, a physician assistant, or an advanced practice registered nurse, including certified nurse practitioners and certified nurse midwives.
Montana’s abortion statute sets viability as the dividing line and presumes viability at 24 weeks. Before that point, the decision belongs to the patient and their provider. After viability, the statute permits abortion when necessary to preserve the mother’s life, and the new constitutional amendment broadens the exception to include the patient’s health as judged by a treating healthcare professional. Violations of the remaining provisions of Montana’s abortion statute are classified as felonies under state law.1Montana Legislature. Montana Code Annotated 50-20-109 – Control of Practice of Abortion
Several restrictions that the legislature has passed over the years are no longer enforceable. Courts have permanently blocked the state’s waiting period and biased counseling requirements, struck down a ban on dilation and evacuation, invalidated a 20-week ban, blocked a telemedicine ban for medication abortion, eliminated the mandatory ultrasound requirement, and overturned the parental consent law.
The Constitutional Basis
Two sources of law protect abortion in Montana: a privacy clause in the state constitution that dates to 1972, and a new section added by voters in 2024.
Article II, Section 10: The Privacy Clause
Montana’s privacy provision reads: “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.”2Montana Code Annotated. Montana Code Annotated – Section 10 – Right of Privacy The 1972 Constitutional Convention delegates chose that language deliberately, embedding strict scrutiny directly into the text so courts would hold any privacy-infringing law to the highest standard of review.
Under strict scrutiny, the state must prove two things before it can restrict a fundamental right: that the restriction serves a compelling state interest, and that no less restrictive means exists to achieve it. The burden falls entirely on the government, not the person challenging the law. Legislators cannot justify an abortion restriction with moral preferences or generalized concerns; they need documented medical evidence of a genuine health risk.
CI-128: The 2024 Amendment
On November 5, 2024, Montana voters approved Constitutional Initiative 128 by roughly 58% to 42%, adding a new Section 36 to Article II of the state constitution. It took effect on July 1, 2025.
The amendment establishes a right to “make and carry out decisions about one’s own pregnancy, including the right to abortion.” It codifies the strict scrutiny framework the Montana Supreme Court had already been applying and defines “compelling” narrowly: only an interest that “clearly and convincingly addresses a medically acknowledged, bona fide health risk” and does not override the patient’s autonomous decision-making. After viability, the government may regulate abortion, but it cannot deny access to a procedure a treating provider judges necessary to protect the patient’s life or health.
CI-128 also added protections earlier court rulings had not covered. The government cannot penalize anyone based on their pregnancy outcomes, and it cannot take adverse action against someone who helps another person exercise their pregnancy-related rights.
The Court Rulings That Shaped Access
Armstrong v. State (1999)
The 1999 case Armstrong v. State was the first time the Montana Supreme Court applied the privacy clause to abortion. Healthcare providers challenged a statute limiting abortions to licensed physicians. The court held 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.”3FindLaw. Armstrong v. State The ruling established viability as the dividing line and made procreative decisions a fundamental right under the Montana Constitution.
Weems v. State (2023)
In Weems v. State, the court struck down a 2005 amendment that limited who could perform abortions to physicians and physician assistants. Two advanced practice registered nurses — a certified nurse practitioner and a certified nurse midwife — argued the restriction violated patients’ right to choose their own provider.
The record showed that early abortion care is identical to procedures APRNs already lawfully perform in Montana, that national and international studies found no difference in complication rates between APRNs and physicians performing abortions, and that the state’s own nursing board acknowledged medication and aspiration abortions are not significantly different from what nurse practitioners handle without incident.4Justia. Weems v. State The state produced no evidence of a medically acknowledged health risk. The decision expanded access, particularly in rural areas where a nearby physician may not be available.
The Parental Consent Ruling
Montana’s 2013 Parental Consent for Abortion Act required minors to obtain a parent’s or guardian’s consent before having an abortion, with a judicial bypass provision. In 2024, the Montana Supreme Court struck it down, concluding that requiring parental consent might serve parents’ interests but would not actually enhance the protection of minors.5Justia. Planned Parenthood v. State
Montana asked the U.S. Supreme Court to intervene. On July 3, 2025, the Court denied the petition for certiorari, leaving the state ruling intact.6Supreme Court of the United States. Montana v. Planned Parenthood of Montana The denial did not address the merits.
Restrictions the Legislature Passed and Courts Blocked
The 2023 legislative session produced a wave of abortion restrictions, all of which have been blocked. The most significant were:
- HB 575, which tightened the post-viability ban by removing broader health exceptions.
- HB 721, which banned dilation and evacuation, a common second-trimester procedure, with only a narrow life-threatening exception. Violations were classified as felonies with a mandatory license suspension of at least one year.
- Medication abortion restrictions requiring in-person visits, banning telemedicine prescribing, imposing a 24-hour waiting period, and mandating that providers tell patients about the unproven claim that medication abortion can be reversed.
The Montana Supreme Court held that HB 575 and HB 721 implicated the privacy right by banning pre-viability abortions and applied strict scrutiny accordingly.7FindLaw. Planned Parenthood of Montana v. State The medication abortion restrictions were permanently enjoined.
How Federal Law Interacts with Montana’s Rules
Montana’s protections operate independently of federal law. When the U.S. Supreme Court overturned Roe v. Wade in 2022, the ruling eliminated the federal constitutional right to abortion but did not touch state constitutions. Montana’s privacy clause existed before Roe and survived its reversal without modification. The state court’s rulings are grounded in the Montana Constitution, and federal courts have no jurisdiction to override a state supreme court’s interpretation of its own founding document.8Justia. The Constitution of the State of Montana
Two federal changes in 2025 affect the broader environment without changing what Montana law allows. Federal EMTALA guidance requiring hospitals to stabilize patients regardless of state abortion bans was rescinded in June 2025. The HIPAA reproductive health privacy rule, which would have limited providers’ ability to share reproductive health records with law enforcement, was vacated nationally by a federal court that same month. Neither development alters Montana’s rules, but providers serving patients from states with stricter laws may face more uncertainty about federal protections than they did previously.