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Judge extends order blocking Montana abortion restrictions from taking effect

Order indicates he believes bills unconstitutional
Judge Michael Moses
Posted at 6:27 PM, Oct 07, 2021
and last updated 2021-10-07 20:38:32-04

BILLINGS — A state district judge on Thursday (October 7, 2021) extended his order blocking three new laws restricting abortion in Montana, and indicated he believes all three are unconstitutional.

District Judge Michael Moses issued a preliminary injunction blocking the laws from being enforced, while he decides their constitutionality – an extension of his temporary order issued a week ago, the day before the laws took effect.

In a 35-page order issued late Thursday, Moses said he blocked the laws because they would cause “irreparable harm” to Planned Parenthood of Montana and its patients, by taking away a “constitutionally protected right” to an abortion.

The laws ban abortion after 20 weeks of pregnancy, severely restrict abortion-inducing pills, or “medication abortion,” and require providers to ask women if they want to hear the fetal heartbeat or see an ultrasound of the fetus before having an abortion.

Moses said Planned Parenthood had made a strong case that the laws violate women’s right to privacy.

The Republican majority at the 2021 Montana Legislature passed all three bills and Republican Gov. Greg Gianforte signed them into law in late April.

Planned Parenthood and one of its physicians filed suit August 16, asked the court to declare all three laws unconstitutional, as well as another law restricting abortion insurance coverage.

Moses took over the case last Thursday, after District Judge Gregory Todd of Billings recused himself when the state accused him of bias against its case.

Moses then issued a temporary order blocking the laws from taking effect, while he decided on whether to issue an injunction.

Moses’ injunction issued Thursday strongly indicated that he believes that the first three bills challenged by the lawsuit – House bills 136, 140 and 176 -- are unconstitutional.

A state court ruling from two decades ago established that denying a woman access to a lawful abortion, before the fetus is viable, violates her constitutional right to privacy, he said. The ban on abortions past 20 weeks of pregnancy appears to violate that right, because the fetus doesn’t become viable until 24 weeks, Moses said.

He also said the new restrictions on medication abortion – such as requiring women to see a provider in person before getting the medication or enforcing a 24-hour waiting period – also infringe on that privacy right.

Finally, Moses said the law requiring abortion providers to ask women if they want to see an ultrasound of the fetus or listen to its heartbeat appears to “stigmatize or discourage women from obtaining an abortion in Montana,” which he said is a protected right.

It also “compels government-approved speech that interferes with the doctor-patient relationship,” he said.