Gov. Greg Gianforte claps before signing five abortion laws on May 3, 2023. (Photo by Nicole Girten/Daily Montanan)
A state district court judge has ruled that two bills which would make abortions more complicated or illegal in Montana are unconstitutional and has ordered them stricken from the books.
The bills were both passed by the Montana Legislature in 2023, which had a supermajority of Republican lawmakers. The bills were signed by Gov. Greg Gianforte and touted as a part of protecting families and uplifting “pro-life” policies.
Planned Parenthood of Montana challenged the two bills, led by attorney Raph Graybill.
House Bill 575 would have forced physicians or physician assistants to make a “determination of viability” in writing, and would have required an ultrasound before any abortion procedure.
House Bill 721 would have prohibited “surgical abortion” which includes the “dilation and evacuation” procedure except in cases of medical emergency. Currently, providers in the state offer this option through 21 weeks and six days. No Montana provider currently offers third-trimester abortions, and the procedure is allowed in the state until the point of fetal viability except in cases where it’s medically necessary or to protect the life of the mother.
Even though Montana voters overwhelmingly approved protecting the right to access abortion by passing Constitutional Amendment 118 in November, Lewis and Clark County District Court Judge Mike Menahan said that well established case law in Montana has “consistently reaffirmed this ‘fundamental right to access abortion care.’”
Quoting from the landmark 1999 case, Armstrong vs. State of Montana, Menahan said, “The Legislature may only restrict the ‘right of choice in making personal healthcare decisions and in exercising personal autonomy to preserve the safety, health and welfare of a particular class of patients or the general public from a medically acknowledged bona fide health risk.”
The state justified the law by arguing requiring an additional ultrasound to the procedure placed a minimal burden on pregnant women because ultrasound technology is so common. Menahan rejected that argument, saying the process wasn’t medically justified or, in many cases, is not practical.
“This argument does not overcome plaintiffs’ contention the statute creates an additionally medically unnecessary barrier to abortion care,” the court ruling said.
Meanwhile, Menahan said there are plenty of reasons that Planned Parenthood presented as to why the new regulations, including in-person visits or other health concerns, could block access as well as put the patient’s life at risk.
“Plaintiffs have also provided evidence of patients unable to attend in-person appointments for other reasons including financial circumstances, disabilities or the risk experiencing intimate partner violence,” Menahan said.
Even though the state argued that such new restrictions, like an in-person visit, are minimal, the court viewed the additional requirements differently.
“It is not enough for the state to argue the restriction is a minor one,” the order said. “Under a strict-scrutiny analysis, the state must demonstrate HB 575 is narrowly tailored to address ‘a medically acknowledged, bona fide health risk, clearly and convincingly demonstrated.’”
Additional concerns about HB 721
Menahan raised additional concerns about HB 721 because it bans the dilation-and-evacuation method of abortion unless it is being used for an emergency medical situation. That would mean that abortion through medication would be the only allowable method, but HB 721 would create a “pre-viability” loophole in state law. Current Montana law, which has been in place since at least the Armstrong ruling, said the state cannot restrict the practice up to the point of fetal viability, usually considered around 22 weeks. However, since medication abortions can only be done up to 15 weeks after the woman’s last menstrual cycle, HB 721 would effectively create a ban on abortions between 15 and 22 weeks when the procedure is done surgically.
HB 721 would also impose felony criminal penalties, including a fine or imprisonment of as long as 10 years.
“The state argues HB 721’s ban on D&E procedures is necessary to prevent ‘psychological risks to the pregnant woman’ because D&E ‘has been shown to lead to serious mental health issues,’” the court said. “However, the state’s argument in support of HB 721’s ban on D&E procedures is fatally flawed because the state’s purported evidence is largely unrelated to D&E procedures specifically.”
Menahan said that the research the state cited as evidence doesn’t show the procedure has “greater negative psychological outcomes” than the other methods.
“Politicians have been desperate in their attempts to ban abortion, and while Montana has strong legal protections, their attempts cause confuse and chaos for patients,” said Martha Fuller, President and CEO of Planned Parenthood Montana.