New abortion rules will be challenged in court, opponents warn

As the State of Montana considers changing rules to make getting an abortion using Medicaid more difficult and restrictive, a group of health care providers sent a letter via their attorneys warning the state and lawmakers that adopting the proposed rules will lead to a lawsuit.

The letter, sent on Monday to Paula Stannard, the chief legal counsel for the Department of Public Health and Human Services, says new rules that would require more paperwork by doctors, restrict which medical providers can perform abortions, and make the department pre-authorize any abortions for Medicaid. The letter argues those changes are not legal or consistent with rulings by Montana’s courts. The courts have been called upon repeatedly to intervene in abortion laws passed by the legislature.

“It’s not surprising that pro-abortion activists are lining up to force Montana taxpayers to fund elective, nontherapeutic abortions under Medicaid,” said DPHHS Director Charlie Brereton. “We’ll continue reviewing Montanans’ comments on the proposed rule which seeks to protect the integrity of our Medicaid program.”

Representatives from the governor’s office and the Montana Attorney General’s Office did not respond for comment Monday afternoon.

A spokesperson from DPHHS earlier told the Daily Montana the agency would consider all public comments received on the proposed changes before the Jan. 20 deadline and finalize its rules following the review. DPHHS did not provide a timeline for a final decision and said procedures don’t require one.

The letter cites a number of high-profile cases that have established the right to an abortion in Montana, referencing the landmark 1999 decision, Armstrong vs. State, which said the state’s constitutional right to privacy included the right to be free of government interference in medical decisions.

Two other cases in Montana courts have also enjoined some of the action that DPHHS is proposing, including treating nurse practitioners or physicians assistants differently than medical doctors, saying they would not be reimbursed for Medicaid-supported abortions – a topic that the Montana Supreme Court has ruled on twice. It has previously said that the state has no legal reason from prohibiting licensed, qualified mid-level practitioners to perform abortions.

The letter expresses concern that new Medicaid abortion rules instituted by DPHHS would take place immediately, rather than pausing to prepare for their implementation – a more common occurrence.

“If the proposed rules take effect, they will have an immediate, grave, and irreparable impact on the health of patients in Montana seeking abortion care and their constitutional rights,” the letter said.

The letter warns that “should the rules become effective as proposed, Planned Parenthood of Montana and other providers intend to seek declaratory and injunctive relief against the new laws.”

Instead, the letter asks the department to delay the effective date to 90 days, or agree to pause the rules to give a court time to rule on the legality and constitutionality of the rules.

“Should the department refuse to provide information regarding the planned publication date of its adoption notice or consider these proposals, Planned Parenthood of Montana and other providers will need to seek immediate injunctive relief to protect their patients, causing the department to expend further time and expense,” the letter said.

The letter asks for a response by the end of the day on Wednesday.

“The Department’s proposed changes to the Medicaid program will deny low-income Montanans access to abortion care services,” the letter said. “The proposed rules invade rights secured by the Montana Constitution.”

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.