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Abortion providers, state attorneys spar over new restrictions

by MARA SILVERS Montana Free Press
| May 24, 2023 9:05 AM

A Helena district court judge on Tuesday barred the state from enforcing five new abortion restrictions while litigation over their constitutionality continues.

The order from the bench came at the end of a three-and-a-half-hour court proceeding featuring Montana abortion providers, medical witnesses and state agency representatives. Attorneys representing Planned Parenthood of Montana, Blue Mountain Clinic and All Families Healthcare argued that the laws and rules curbing abortion procedures, requiring ultrasounds and limiting Medicaid coverage of abortions should be enjoined while litigation continues. State attorneys pushed for the measures to take effect as scheduled, either immediately or on July 1.

While cautioning that a temporary injunction does not indicate who might eventually win the two ongoing lawsuits, District Court Judge Mike Menahan said he would side with the plaintiffs’ motion to enjoin the policies while the facts and arguments develop.

“As a judge, my focus is how this would impact the fundamental right of the patient. That is where my focus lies,” Menahan told the courtroom, adding that his decision also keeps the current legal landscape intact.

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

The challenged laws include a ban on dilation and evacuation abortions after roughly 15 weeks of gestation, the most common method for ending a pregnancy after the first trimester, as well as a law banning abortions after 24 weeks of pregnancy and requiring an ultrasound before a procedure at any point in gestation. Both policies, House Bill 721 and House Bill 575, were signed by Gov. Greg Gianforte in May and took immediate effect but were blocked within days by temporary restraining orders issued by Menahan at the request of Planned Parenthood of Montana.

All three of Montana’s abortion clinics are also suing over the state’s efforts to curb Medicaid coverage for abortions. The state health department wants to require that physicians receive pre-approval from the state to ensure abortions are “medically necessary,” an administrative rule change providers say will restrict abortion access for low-income women.

Two bills sponsored by Republicans and signed by the governor last week focus on the same issue: House Bill 544 would closely replicate the state’s administrative rule while House Bill 862 would bring the state’s Medicaid policy in line with the federal Hyde Amendment, which bars federal funds from covering abortions except in cases of rape, incest or a life-threatening medical emergency. Blue Mountain Clinic, All Families Healthcare and Planned Parenthood of Montana are challenging those laws as part of their earlier lawsuit over the state’s new Medicaid rule.

Throughout Tuesday’s marathon court proceedings, attorneys for the state argued that each law or department rule is within Montana’s regulatory purview for health services. Thane Johnson, the lead attorney defending the laws, specifically focused on the ultrasound requirement in HB 575, a feature he said would protect patient health by identifying ectopic pregnancies and other gestational information.

“It’s a good way. It’s a sure way,” Johnson said. “And that is a bona fide health risk that a simple procedure of an ultrasound, that are in 51 facilities across this state, will prevent.”

Medical witnesses, including Planned Parenthood of Montana’s chief medical officer Dr. Sam Dickman and Dr. Steven Ralston, a maternal fetal medicine specialist in Maryland, disagreed that ultrasounds are necessary for every abortion. That requirement, they said, could hamstring patients who otherwise might receive abortion medication through the mail to terminate earlier pregnancies.

“Some patients are affected by physical disabilities that make it very difficult to travel. Other patients might not have access to transportation at all. They just don’t have a car, don’t have access to a car. And then some patients are keeping their decision to have an abortion a secret from partners or family members,” Dickman said, referencing domestic violence victims. “Those are all situations where patients really benefit from being able to access direct-to-patient medication abortions.”

Johnson, representing the state, argued that ultrasounds are easily accessible and the results can be quickly emailed or faxed to a medical provider at Planned Parenthood, a scenario Dickman disputed.

Attorneys also dove into Montana’s existing policies for allowing state Medicaid dollars to pay for abortions. HB 544 and the state health department’s rule would narrow the definition of medical necessity, requiring additional documentation and approval for a covered procedure.

Helen Weems, a nurse practitioner in Whitefish at All Families Healthcare, said her determination of medical necessity is nuanced and not a proper place for state government intervention.

“Using my professional training, my education and experience, I make a determination as to whether an abortion would confer medical benefit for that patient and whether it would reduce harm,” Weems said. If the new rule were in place, she continued, the several hundred dollars an abortion costs out of pocket could be prohibitive to her patients and would likely cause her to close her clinic.

Johnson and another state attorney made the case that the state is within its right to limit what Medicaid covers and ensure that public funds are not going to “elective, nontherapeutic” abortions.

“That’s part of the legitimate police power of the state of Montana, is to prevent fraud and to prevent a waste of taxpayer dollars,” Johnson said.

Attorneys for the plaintiffs reiterated that, despite the complexity of each rule and law debated Tuesday, the legal questions before Menahan have already been well-deliberated in Montana courts. Plaintiffs said the recent restrictions violate Montanans’ constitutional right to privacy, which protects “procreative autonomy” and specifically access to abortion from a qualified provider of the patient’s choice. That legal precedent was set in 1999 with the unanimous Montana Supreme Court ruling in Armstrong v. State, they said, a decision strongly reaffirmed this month by all seven current justices in a case about whether nurse practitioners can provide abortions: Weems v. State.

“The issues in this case are legal and they are straightforward. This is an abortion restriction that burdens access. Under Armstrong, under Weems, government restrictions that burden the right are subject to strict scrutiny. The invasions of the right can only survive if they address, again, a medically acknowledged, bona fide health risk. None of these restrictions do that,” said attorney Raph Graybill, representing Montana’s Planned Parenthood affiliate.

All three of the state’s abortion providers heralded the judge’s ruling to block enforcement of the policies in a Tuesday statement after court adjourned.

“While this fight is not yet over, we are relieved that Montanans can still access vital, medically necessary, and potentially life-saving reproductive health care services without being unjustly turned away due to their income and insurance status,” the statement said.

In an emailed statement Tuesday evening, Emily Flower, a press secretary with the attorney general’s office, criticized Menahan’s decision about what she described as “the most basic health protections for pregnant women and unborn babies.”

“That said, this is a preliminary matter at this point. The complete factual and legal argument will reinforce the constitutionality of these laws,” Flower said.

Reporter Mara Silvers can be reached at msilvers@montanafreepress.org. The Montana Free Press is a Helena-based nonprofit newsroom. To read the article as originally published, click here.