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Two Montana abortion clinics are asking a state district court to block new licensing requirements for clinics issued by the Department of Public Health and Human Services last month.
“These new regulations are the classic wolf-in-sheep’s clothing,” said Akilah Deernose, executive director at the ACLU of Montana, in a statement about the requirements and House Bill 937. “They are yet another attempt by the Montana Legislature to regulate abortion clinics out of existence. As such they violate important protections in the Montana Constitution.”
In September 2023, a judge in Helena issued a temporary restraining order on the part of HB 937 that would have required Montana abortion clinics to be licensed in order to operate, partly because the state had not developed any rules for licensing clinics, according to Lewis and Clark District Court Judge Christopher Abbott.
In his order, Abbott had noted abortion clinics weren’t licensed in Montana, but their providers are licensed; at the time, he said, there was no way for clinics to get licensed by the bill’s effective date.
He said whether the state had a compelling interest in licensing was “a question for another day,” and he also said laws that “significantly” inhibit abortion access are “presumptively unconstitutional” and can only survive if they meet the highest standard of judicial review.
But the judge declined to weigh in on whether HB 937’s requirements were unconstitutional in the temporary restraining order: “The Court deems it unnecessary to offer any prediction of whether HB 937’s licensure requirement is otherwise unconstitutional on any of the grounds advanced by Providers.”
Rather, he said, his order would be narrow and still allow DPHHS to write rules for licensing in its “execution of the public policy goals of the legislature” prior to a full hearing.
A news release from the plaintiffs Tuesday said the judge’s earlier restraining order expires on Nov. 19, and their court filing notes the Department of Public Health and Human Services has since published rules; it did so on Sept. 20, and the rules took effect immediately, said the court filing.
But as part of the lawsuit, both sides agreed that whenever the department issued the rules, the abortion clinic providers could challenge them as part of the lawsuit.
This week, the plaintiffs in All Families Healthcare vs. Montana asked the court to file an amended complaint based on HB 937 from the 2023 Montana Legislature. They argue “the new rules will impose onerous and unnecessary requirements that will make it more difficult for clinics to stay open and harder for patients to access abortion care.”
Supporters of laws that restrict abortion access in Montana generally argue they are protecting the lives of “unborn children.” During the 2023 legislative session, HB 937 sponsor Rep. Lola Sheldon-Galloway said the bill would add safety nets for women and “keep medical procedures safe.”
The new rules include numerous requirements for clinics that provide abortions, including an “attestation that the applicant is of reputable and responsible character,” construction standards for rooms, and that the clinic keep FBI background checks of all staff, which DPHHS can inspect at any time.
The case was filed by the Center for Reproductive Rights, the ACLU of Montana, and Dechert LLP on behalf of All Families, Blue Mountain Clinic, and Helen Weems, APRN-FNP.
Abortion is legal in Montana; Armstrong vs. State found it to be protected through privacy in the Montana Constitution. However, since the U.S. Supreme Court overturned Roe vs. Wade, abortion opponents have ramped up legal battles to restrict it across the country, including in Montana.
Proponents are also working to secure abortion rights. This November, Montanans will decide whether to enshrine access to abortion in the state Constitution through Constitutional Initiative 128.
In a statement from ACLU of Montana, provider Weems of All Families Healthcare said abortion saves lives, and she would rather focus her efforts on providing life-saving care for her patients than on going to court over and over again.
“The new rules are the latest effort by the state to single out abortion providers for medically unnecessary harassment, with the end goal of making abortion care inaccessible to patients and regulating abortion providers out of existence,” Weems said in a statement from the plaintiffs. “If All Families stopped providing abortion care—but continued to provide identical miscarriage care—none of the new rules would apply.”
Hillary Schneller, senior staff attorney at the Center for Reproductive Rights, said since the fall of Roe, states should find ways to help people access abortion, not make it harder.
“Like the slew of abortion restrictions Montana has passed in recent years, the new clinic rules are not about safety,” said Schneller in a statement. “The clinics we represent have been providing safe and compassionate abortion care for years, and like all health care providers, are already subject to government regulation.
“The new rules have no purpose other than making abortion harder to provide and access. This is yet another attack on Montanans’ fundamental rights to privacy and bodily autonomy.”