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Abortion clinics in Montana won’t be subject to new licensing requirements — ones their lawyers said could shut them down — at least for the time being.
Last week, a Lewis and Clark County District Court judge said the licensing requirements imposed by House Bill 937 from the 2023 Montana Legislature are likely to violate patients’ rights to equal protection.
That’s because the rules treat abortion providers differently than healthcare providers who prescribe the same medication and perform the same procedures — but for purposes that are not abortion, such as miscarriages, wrote Judge Christopher Abbott.
“In this case, the harm occasioned by inflicting constitutional injury on providers and their patients, who face likely disparate treatment, regulatory burdens not shared by other, similar, patients and providers, and the strong potential of imminent closure (at a minimum until regulatory compliance is achieved … ) outweigh the government’s interest in effectuating a change to the status quo in the form of HB 937,” the order said.
As such, Abbott issued an order that continues to bar the law and the health department rules implementing it from taking effect for now. A temporary restraining order that blocked the law was set to expire Nov. 19.
The judge said the providers appear to have demonstrated the law violates their rights, but the order is temporary until the lawsuit fully plays out.
As adopted in 2023, the law would require abortion clinics to be licensed. Currently, abortion providers are regulated under their licensing boards and the federal government.
However, many private medical practices aren’t required to be licensed under the state health department, the order said.
In September 2023, the judge said the law couldn’t take effect in part because the rules that governed the new licensing requirement weren’t in place yet.
But the order said it was too early to weigh in on the licensing requirement, and the Department of Public Health and Human Services still needed the opportunity to write the rules to carry out the will of the legislature.
However, the parties agreed that once those rules were written, they too could be challenged.
This September, the health department published the final licensing rules, which include paying a $450 annual licensing fee, requiring license applicants be of “reputable and responsible character,” that providers keep staff background checks on file for inspection, and construction requirements.
The order that temporarily barred the law from taking effect until the rules were written was set to expire Nov. 19. The judge heard arguments on Nov. 8 over whether the court should hit pause on the new law now that the related regulations are in place.
In their arguments against the law and related rules, All Families Healthcare, Blue Mountain Clinic and provider Helen Weems alleged the new requirements were “onerous and unnecessary” and would make it more difficult for clinics to stay open and patients to access abortion care.
The Center for Reproductive Rights, the ACLU of Montana, and Dechert LLP argued for the providers.
The judge agreed with the providers, citing longstanding law in Montana that protects abortion, including Armstrong v. State, and also the new measure voters approved that directly protects abortion in the Montana Constitution, Constitutional Initiative 128.
“Whatever one’s views may be, the law in Montana is well-established. Women have a state constitutional right of access to pre-viability abortions from a qualified medical provider of their choice,” the order said. ” … Moreover, voters recently affirmed the core holding of Armstrong when they approved the addition of an express right to abortion access in the Montana Constitution.”
The providers are likely to show the rules infringe on their right to equal protection, and that they will suffer irreparable harm without an order that stops the law in question from taking effect until the lawsuit plays out, the order said.
So a preliminary injunction, or an order maintaining the status quo, is appropriate, the judge said.
“The status quo is what has been the case for decades: while abortion providers are subject to applicable federal regulation and regulation by their licensing board, they are not generally considered healthcare facilities subject to a licensure requirement or any DPHHS regulation. HB 937 represents a departure from that status quo,” the order said.
But abortion is safe — safer than child birth, the order said. It said major complications occur in less than one fraction of 1% and complication of all types take place in just 2% of abortions.
“Abortion has a similar or lower risk than vasectomy, an outpatient procedure commonly performed in a doctor’s office,” the order said.
It said the risks of complication from abortion medication, mifepristone and misoprostol, are similar to the risks for aspirin or antibiotics or Viagara. “More to the point,” it said, the risks are “no greater when used to induce an abortion than when used to manage a spontaneous miscarriage.”
It said the same for abortion procedures, “comparable to other gynecological procedures typically performed in-office in terms of ‘risk, invasiveness, duration and instrumentation.’”
Additionally, at this stage in the case, the state has not rebutted that information, the order said.
The order discussed abortion providers as well. It said the state’s witness agreed many doctors and other providers are not required to have facility licensure, and many private medical practices, including clinics with multiple doctors, are not required to be licensed when not affiliated with a larger institution.
“Wooten (DPHHS’ Tara Wooten, the only witness called at the recent hearing) provided as examples of outpatient surgical centers facilities that perform orthopedic surgeries like knee and hip replacements, etc. OB/GYNs and other doctors who perform in-office procedures are not required to license their offices as outpatient surgical centers,” the order said.
If the state had proposed to license all private healthcare providers who offer similar procedures and prescribe similar medications, “this would pose a more challenging case from an equal protection standpoint,” the order said. “But the state did not do that.”
“If the purpose is to ensure women are treated in safe, sanitary facilities that are equipped to manage any complications that may arise, that purpose applies equally to the offices or private doctors and other healthcare professionals where they provide the same procedures for miscarriage management, but whose offices are not subject to any of these new regulations,” the order said. “Because the requirements of House Bill 937 and its implementing regulations are underinclusive in scope, they are not narrowly tailored.”
And the judge said the state has not “at this stage” provided a plausible justification for regulating two classes of providers differently.
In statements Friday, the plaintiffs praised the order, which prohibits the state, the health department and its director and employees from enforcing any provisions of HB 937 or its regulations until further order from the court.
“That this is even a question is absurd. Abortion providers are already regulated by the state. Abortion is incredibly safe medical care,” said plaintiff Weems, nurse practitioner at All Families Healthcare. “Had these new rules been allowed to take effect, I would have been forced to close All Families, leaving the Flathead Valley — and my patients throughout the state — without a provider.
“Although I am grateful for the court’s ruling, this is the third time I have had to go to court to preserve access for my patients — and I should be spending that time on actual patient care.”
Statements from plaintiffs
“Today’s (Friday’s) ruling means abortion clinics in Montana can continue to provide safe, legal, abortion care to their patients as we litigate this case,” said Hillary Schneller, senior staff attorney at the Center for Reproductive Rights. “Despite having strong state constitutional protections for abortion for the past 25 years, Montana politicians have been relentless in attacking abortion access, forcing us to go to court to preserve abortion access in the state — and the region — year after year. Today (Friday), the court rightly blocked these latest restrictions, which, like the dozens of abortion restrictions Montana has enacted over the years have nothing to do with health and safety.”
“(Friday) the Court recognized once again what we all know to be true – that abortion care is safe and should not be singled out for differential treatment,” said Akilah Deernose, executive director of ACLU-MT. “Our government should spend its time and resources protecting access to medically necessary healthcare, rather than arbitrarily inserting itself between a patient and her health care provider.”
“This is a victory for Montanans. Blue Mountain Clinic has been providing family care, including abortions, for nearly 50 years. Out of nowhere, these oppressive and unnecessary rules would have forced Blue Mountain to choose between keeping our doors open and stopping abortion care—and turning away patients who rely on us for compassionate, community-based care, said Tess Fields, executive director of Policy and Development at plaintiff Blue Mountain Clinic. “Abortion is safe, common medical care. More importantly, it is care that is for the patient to decide upon. Not the patient and Governor Gianforte.”