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Montana judge blocks abortion restrictions from taking effect while lawsuits continue

Montana Abortion Bill Hearing
Lewis and Clark County Courthouse
Montana Abortion Bill Hearing
Posted at 11:09 PM, May 23, 2023

HELENA — A district court judge in Helena has blocked a series of new state abortion restrictions from taking effect while lawsuits challenging their constitutionality move forward.

District Court Judge Mike Menahan held a hearing Tuesday afternoon on two separate cases filed by Montana abortion providers, seeking to overturn new laws passed by the Montana Legislature this year, as well as a rule from the Montana Department of Public Health and Human Services. After about three hours of testimony, Menahan agreed to issue preliminary injunctions in both cases.

During the hearing, lawyers representing the state of Montana and abortion providers painted very different pictures of the state’s authority to institute abortion regulations.

“The state has the police power to provide to regulate health care, and that includes the area of abortion,” said Thane Johnson, an assistant attorney general with the Montana Department of Justice.

“The state's arguments here to the effect of, ‘Oh, it's not so bad. It's not really that much of a restriction,’ that's not how constitutional law works when it comes to fundamental constitutional rights,” said Raph Graybill, an attorney representing Planned Parenthood of Montana.

Earlier this month, the Montana Supreme Court invalidated a law that said only physicians and physician assistants could provide abortions, reiterating their finding from the 1999 Armstrong decision that the state Constitution guarantees a woman “the fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.” Much of the testimony Tuesday focused on how to interpret what that decision means for laws that regulate abortion.

The first case initially challenged a DPHHS rule that would require prior authorization before the state Medicaid program pays for abortion services. The state uses its general funds to cover abortions that are determined to be “medically necessary.” However, DPHHS leaders say, after a contractor reviewed Medicaid-reimbursed abortions, they concluded most claims lacked sufficient documentation to confirm they were medically necessary.

Plaintiffs, including Planned Parenthood and independent clinics Blue Mountain Clinic and All Families Healthcare, later expanded their complaint to include two bills recently signed into law by Gov. Greg Gianforte. House Bill 544 would codify the DPHHS rule into law, while House Bill 862 would go further and block using state funding for abortion except in cases of rape, incest and when the woman’s life is in danger – bringing the state in line with the federal policy called the Hyde Amendment.

The plaintiffs argued these changes would all be improper barriers to abortion access for lower-income Montanans. Dr. Samuel Dickman, Planned Parenthood of Montana’s chief medical officer, estimated about 45% of their abortion patients are on Medicaid. Helen Weems, an advanced practice registered nurse who operates All Families Healthcare and filed the case that led to the recent Supreme Court ruling, said more than half of her abortion care was for people with Medicaid. She said her clinic might have to close if the additional limits on Medicaid abortion coverage go forward.

“Even before the Armstrong decision in Montana, our courts said that you can’t discriminate against people because they’re lower-income and deny them access to health care – and that includes abortion care,” Graybill said.

Montana Abortion Bill Hearing

State attorneys said requiring prior authorization and additional documentation was a way to make sure the Medicaid program is not paying for elective abortions, and to ensure they can justify their spending if it’s audited by the federal government. They said the state has a legitimate interest in determining how taxpayer money is spent on abortion.

“Whether an abortion is accessible and whether Medicaid must pay for that abortion are two separate issues,” said assistant attorney general Alwyn Lansing.

The second case focuses on two other bills. House Bill 721 prohibits a specific abortion procedure called “dilation and evacuation,” a form of surgical abortion in which a fetus is removed using forceps or similar tools. Advocates said that procedure is the safest and most common form of abortion after 15 weeks of pregnancy.

House Bill 575 requires a physician or physician assistant to perform an ultrasound before every abortion, as part of a formal determination of whether the fetus is viable. Planned Parenthood argued that would interfere with them delivering abortion medications directly to patients early in their pregnancy. Dickman said they now make those deliveries without requiring an ultrasound, if they determine a patient doesn’t have other risk factors. He said that program is especially important for those in rural areas, those who do not have access to transportation and those seeking an abortion over objections by partners or family members.

Graybill said the two bills – putting limits on commonly used and safe abortion procedures early and later in pregnancy – put patients “between a rock and a hard place.”

Johnson said ultrasounds were a strong medical tool for confirming the gestational age of a fetus, diagnosing ectopic pregnancies and gathering other medical information. He argued they are available at many health care facilities around the state, and it was not unreasonable to ask a patient to get one before getting abortion medications sent to them.

Johnson told Menahan he acknowledged HB 721 was a “harder call,” but that the state had an interest in preventing the abortion procedure that he called “dismemberment” because a fetus may be removed from the uterus in pieces.

Temporary restraining orders had been in effect against the DPHHS rule and HB 721 and 575, but they were set to expire shortly after the hearing, so the plaintiffs asked Menahan to make an immediate ruling from the bench on their requests for injunctions. He agreed to enjoin all five restrictions that are being challenged.

“I think the purpose of an injunction is to essentially maintain the status quo,” Menahan said. “That, above all considerations, is the most important one for me.”

Lewis and Clark County Courthouse

This ruling came after the Montana Legislature passed and Gianforte signed a new law this year changing the requirements for a judge to issue an injunction. Plaintiffs previously had to demonstrate only a plausible case, based on first impression, that their rights have been violated. Now, they must show they are “likely to succeed on the merits” of their suit, matching the requirements in federal court.

“I think it puts the district court judges in a difficult position, because it requires us to issue an order making a finding – essentially a legal conclusion on the law and the evidence of the case, when the facts haven't been fully developed during the course of the litigation, nor have all the arguments on the legal matters been presented,” Menahan said in announcing his decision. “But the Legislature, with its recent enactment to mirror federal law, I think, has the court consider that.”

Menahan said he will release a written order fully explaining his decision later on. However, because he is preparing for upcoming trials, he didn’t give a specific time as to when that might come.

Graybill told MTN the judge’s ruling made sense.

“Montana has really, really, really strong protections for individual privacy, and the courts have consistently held for 20 years that that includes the right to have a doctor-patient relationship where the government doesn't interfere,” he said. “Today's decision is entirely consistent with that longstanding precedent in Montana.”

Emily Flower, a spokesperson for Attorney General Austin Knudsen and the Department of Justice, responded to the ruling in a statement to MTN.

“It's not surprising that a judge who had a 100% voting record with Planned Parenthood while a Democrat in the legislature would block the most basic health protections for pregnant women and unborn babies,” she said. “That said, this is a preliminary matter at this point. The complete factual and legal argument will reinforce the constitutionality of these laws.”