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State judge replaced on eve of big ruling in Montana abortion lawsuit

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Posted at 8:55 AM, Sep 30, 2021
and last updated 2021-09-30 11:01:08-04

BILLINGS — Just as a crucial ruling is expected in the lawsuit challenging four new state laws restricting abortion in Montana, the presiding judge is off the case and has been replaced with a new one.

State District Judge Greg Todd of Billings, who had been the third judge on the case since it was filed in August, apparently stepped aside after state Attorney General Austin Knudsen filed a motion late Wednesday accusing Todd of bias against the state.

District Judge Rod Souza of Billings will take over the case – one day before the laws take effect, on Friday, and as the plaintiff, Planned Parenthood of Montana, has asked for an order blocking the laws while the case is decided.

Planned Parenthood’s lawsuit, filed August 16, asked the court to strike own all four laws 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.

With a new judge now taking over the case, it’s unclear whether that same schedule will occur.

Neither Justice Department nor Planned Parenthood officials were immediately available for comment Thursday morning.

The unexpected tumult in the high-profile case began late Wednesday, when Knudsen’s office filed its motion accusing Todd of personal bias against the state.

The motion referred to remarks by Todd during last Thursday’s hearing on whether to grant the order blocking the laws from taking effect.

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

“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.

Planned Parenthood’s lawsuit is challenging the following laws, passed by 2021 Legislature:

  • House Bill 136, which banned any abortions after 20 weeks of pregnancy.
  • HB171, which created new restrictions and requirements for the disbursement of abortion-inducing pills, or “medication abortion.”

The new law says women seeking a medication abortion must make at least two trips to see a health-care provider in person, rather than through tele-health, and imposes numerous new reporting requirements for health-care providers.

  • HB140, which requires abortion providers to ask patients if they want to view an ultrasound of the fetus and listen to its heartbeat.
  • HB229, which prohibits subsidized health-insurance plans on the Affordable Care Act marketplace from covering abortion.

The suit 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.