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Montana Supreme Court declines to block new abortion laws

Montana Supreme Court declines to block abortion laws
Posted at 4:47 PM, Sep 30, 2021
and last updated 2021-09-30 19:43:11-04

HELENA — In the latest of a flurry of legal maneuvers and rulings on a high-profile case challenging Montana's new abortion restrictions, the state Supreme Court late Thursday declined to block three of the laws from taking effect on Friday - and sent the issue back for a decision by a newly- presiding judge in Billings.

The decision on a request from Planned Parenthood of Montana to block the laws is now before state District Judge Michael Moses, who took over the case Thursday after the third judge on the case was disqualified. His office said late Thursday he is reviewing the request.

Earlier Thursday, Planned Parenthood asked the Montana Supreme Court to an emergency order to block the laws, and then either rule on a lengthier injunction or send that issue back to state court in Billings to be resolved.

If the laws take effect, “they will immediately infringe on the fundamental rights of Montanans seeking abortion care and subject (Planned Parenthood) to criminal penalties for providing that constitutionally protected care,” the Thursday filing said.

Planned Parenthood's request came the day after state Attorney General Austin Knudsen's office sought to disqualify the former presiding judge, District Judge Gregory Todd, alleging he had shown bias against the state's position. Todd stepped down from the case on Thursday and Moses took his place.

The extraordinary string of last-minute legal gyrations came within 36 hours of when the laws are scheduled to take effect, at midnight Friday.

The new laws, passed by 2021 Montana Legislature, ban abortions after 20 weeks of pregnancy, restrict access to abortion-inducing drugs and require physicians to ask women seeking an abortion if they want to listen to the fetal heartbeat.

Planned Parenthood’s initial lawsuit, filed August 16, asked the court to strike down four laws restricting abortion or abortion coverage in Montana, as an unconstitutional violation of privacy and other individual rights.

At a hearing last week, Todd indicated he would rule by Friday on Planned Parenthood’s request to block the laws from taking effect, while he decided their constitutionality.

Also at the hearing, Todd had a brief exchange with state Solicitor General David Dewhirst, in which Todd made an offhand comment referring to the running dispute between state GOP leaders and the state judiciary. Republicans have accused state judges of political bias against Republican-passed laws.

The request filed Wednesday to disqualify Todd from the case referenced that exchange.

“Judge Todd revealed his displeasure and disagreement with the state, the attorney general and his clients, and other executive-branch official, regarding a separate and complex political and legal dispute between Montana’s judiciary, the Legislature and the executive branch – a dispute in which Judge Todd features prominently,” the motion said. “This comment calls into question his ability to maintain an ‘open mind’ to the state’s argument in Planned Parenthood.”

Todd also has been the head of the Montana Judges Association, which has been a figure in the GOP-versus-the-judiciary dispute as well. He’s the third judge to have the case.

The lawsuit had been assigned originally to District Judge Jessica Fehr, who disqualified herself. It was then assigned to Judge Don Harris, but the state moved to substitute him, and Todd took over the case.

The lawsuit asks to strike down the laws because they violate numerous state constitutional rights, including women’s right to privacy in deciding medical procedures, the right to seek “safety, health and happiness,” and health-care providers’ rights to free speech, by compelling them to give certain advice or dispense false information.