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Private parts: Montana's fast-moving effort to dismantle residents' right to privacy – Daily Montanan

['More From Author', 'February', 'Darrell Ehrlick']

Date: 2022-02-03 00:00:00

Of all the things the pandemic has taken from us, I am happy to report, COVID-19 has not robbed the Treasure State of irony.

In a passionate appeal to the Montana Supreme Court – the same venerable institution that Montana Attorney General Austin Knudsen has repeatedly insulted, demeaned and accused – the state’s top lawyer argues that a 1999 ruling by the justices got the issue of abortion wrong. In the Armstrong case, the court found that women were guaranteed privacy enough through the state constitution to make their own choices about birth control, reproductive health and abortion without the unnecessary nannying of state government.

Knudsen’s words in the recent appeal were unequivocal and fiery.

“In just a few sentences, therefore, Armstrong (the landmark decision establishing the rights of women to get an abortion in Montana) remarkably located a right to pre-viability abortion in a constitutional provision meant to prevent government snooping,” the attorney general’s brief stated.

I doubt it’s reasonable to expect the seven justices of Montana’s highest court to ignore Article II, Section 10 of the constitution, which plainly says, “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.”

And, I’ll take a momentary sidebar to point out: If the state’s constitutional right to privacy, or as Knudsen labels it, “government snooping,” doesn’t protect a citizen’s medical decisions, I am not sure I can think of something more private in need of protection.

Keep in mind that privacy laws also shield property sale prices from being disclosed in Montana. In other words, Knudsen seems to think that your home’s selling price deserves more protection than your medical records.

What makes Knudsen’s argument especially ironic is that state government, since Knudsen and his fellow conservatives have taken power, has become remarkably more adept at stonewalling public information. If anyone seems to be enjoying the spoils of privacy, it’s leaders like Knudsen and Gov. Greg Gianforte.

Keep in mind that the state’s right to privacy extends to police reports – one of only nine states to rule those off-limits to the public unless they’re incorporated into another public document like a court file.

In other words, Knudsen’s office is fine with protecting people with a badge from citizens snooping, but believes those who employ stethoscopes don’t deserve the same kind of protection. His argument to the Supreme Court would make it easier to obtain medical records than police reports.

At least two different lawsuits are being fought in Montana courts right now, centering on the Governor’s Office and what is being billed as a lack of transparency. Most public documents requests from the Governor’s Office take months, likely a strategic move by the administration to stall release of any sensitive information for long enough to make passe by the time it’s discovered.

Meanwhile, over at the Attorney General’s Office, staff members routinely refuse to comment or even answer questions regarding legal matters of public importance.

Knudsen also led the fight to make every email of the state’s court administrator public, even while lawyers for her begged not to do so because they were worried about confidential matters like personnel records or juvenile court material being accidentally released. No matter, though, Knudsen pressed forward, trying to acquire thousands of emails in two days in order to evade review by … you guessed it … the state’s Supreme Court.

And, even when ordered to return those same emails because of privacy concerns, the office still has yet to return the documents or even ask for a stay while appealing the matter the United States Supreme Court.

So forgive me if I doubt Knudsen’s fidelity to the state’s constitution. You just can’t convince me – especially as a member of the press, which has repeatedly had to fight in the arena of public records versus individual privacy – that Knudsen has anything more than a meretricious view of the state’s foundational document, the 1972 Constitution. And if Montanans don’t have a right to decide their medical care in the privacy of the doctor’s office without state interference, then there flatly is no right to privacy at all here.

That makes me believe that while Rep. Derek Skees, R-Kalispell, generated his own wave of outrage as he suggested the state’s constitution and its right to privacy was a “socialist rag” in need of tossing, Knudsen’s actions and words show only a slightly more sophisticated contempt for the law he’s repeatedly sworn an allegiance to.

And make no mistake, the attorney general’s spurious claims about the Montana Constitution aren’t any less objectionable than Skees’ just because they’re coming from a man in a western hat, cowboy boots and larger belt buckle.

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