Planned Parenthood challenges four Montana abortion bills

Planned Parenthood of Montana on Monday mounted a legal challenge to a slate of laws passed in the last session restricting access to abortion, a lawsuit that opponents of the bills have long promised.

The suit challenges the bills on constitutional grounds, citing specific privacy protections in the Montana Constitution and the state Supreme Court’s ruling in 1999’s Nelson v. State, which enshrined “procreative autonomy” in law and drew a direct line between the privacy rights in the state constitution and the right to obtain an abortion.

The laws “will reduce the number and geographic distribution of locations in Montana where women can access safe and effective abortion care,” allege the plaintiffs, Planned Parenthood and Dr. Joey Banks, a reproductive health care physician. “Their combined effect is particularly cruel and prohibitive-pushing women seeking abortion later into pregnancy and also cutting off access to abortion at an earlier gestational age.”

The suit, filed in Yellowstone County District Court, targets four laws, some of which were top priorities for Gov. Greg Gianforte in the 67th Legislative Session, his first as governor. The plaintiffs also seek a preliminary injunction to block implementation of three of the laws before their effective date of Oct. 1.

“While the laws create various restrictions, they all share the same ultimate goal: outlawing safe, legal, constitutionally-protected abortion entirely, and creating unnecessary barriers to health care,” said Planned Parenthood of Montana CEO Martha Stahl in a statement.

Abortion was near the top of the political agenda in this year’s legislative session. Gianforte is Montana’s first Republican governor in 16 years, and he made his pro-life bona fides clear on the campaign trail. Conservatives in the Legislature relished the opportunity to advance a political agenda that had stalled under 16 years of Democratic governance, and advanced several abortion restriction measures throughout the session, often explaining them as necessary to create informed consent or protect unborn children.

Last month, Gianforte also signed onto an amicus brief for a Mississippi case at the United States Supreme Court, which bans abortions after 15 weeks, except in cases of medical emergency. The U.S. Fifth Circuit of Appeals had struck down the law.

The Planned Parenthood suit challenges four bills in particular: House Bill 136, which would ban most abortions after 20 weeks gestational age and impose civil and even criminal penalties on doctors who violate the law; House Bill 171, which would place restrictions on and end telehealth provision of medication abortions; House Bill 229, which would prohibit insurance obtained via the Affordable Care Act from covering abortions, and House Bill 140, which requires providers to ask those seeking an abortion if they’d like to first view or hear an ultrasound, a law that Planned Parenthood said “stigmatizes abortion and does not provide any medical benefit.”

The plaintiffs also requested an injunction to stop HB136, HB140 and HB171 before their Oct. 1 effective date. The laws, they said in a brief supporting the motion, interfere with the patient-provider relationship.

Rep. Sharon Greef, R-Florence, who sponsored HB171, said she’s disappointed in the suit, and that while she’s a believer in the pro-life agenda, she doesn’t view her bill as restricting access to abortion.

“This is putting sideboards on a drug that has been proved to be dangerous for women taking it,” Greef said.

The bill focuses on mifepristone, a chemical used in medically-induced abortions, in which a patient seeking an abortion takes a pill regimen. The practice makes up almost half of abortions performed before 8 weeks gestation, and comprises 75% of abortions performed by Planned Parenthood of Montana.

Side effects like heavy menstrual bleeding, cramps and fever are possible, but complications are exceedingly rare. 

The bill requires that the medication only be provided in-person, ending the possibility of telehealth treatment, that a woman make multiple trips to the office before the medicine can be prescribed, and directs doctors to administer tests in order to determine a patient’s blood type and the gestational age of the pregnancy, among other requirements. The bill also asks that the woman sign an informed-consent form that, among other things, includes a declaration stating that a patient was told of the possibility of reversing the medication abortion and of a service called www.abortionpillreversal.com, a program of Heartbeat International, a Catholic organization that runs non-profit clinics that seek to persuade women away from getting abortions.

These requirements, and the associated punishments for clinicians in violation, “force providers to choose between their ethical obligation to provide accurate medical information and safe advice to their patients, and a felony charge under HB 171,” the suit argues. The other elements of the law place burdensome restrictions on access to medication abortions that violate the state’s constitutional privacy protections, which previous courts have found to be even broader than those afforded under the U.S. Constitution. The state, that precedent holds, needs to demonstrate a compelling interest to step in to the patient-provider relationship.

The lawsuit makes similar arguments around HB136, which would ban abortions after 20 weeks gestational age following the presumption that a fetus at this age can feel pain — something contested by the American College of Obstetricians and Gynecologists, which holds that this is not possible until the third trimester.

Plaintiffs say that the 20-week ban is itself unconstitutional, and that even if it weren’t, the bill’s exceptions are too vague. They also take issue with language in the bill stating that in event of litigation arising from a violation of HB136, the court would have to establish a justification for protecting the identify of the woman who received the abortion.

Both HB136 and HB171 received legal notes from legislative staff attorneys during the session. In both cases, the attorneys cited Armstrong and the specific privacy protections of the state constitution and warned of possible constitutional conformity issues.

Montana Attorney General Austin Kndusen, named as a defendant in the suit, did not return a request for comment through his spokespeople. In a statement issued to KTVH, Knudsen said that the statutes are “clearly valid” and that voters in 2020 rejected “extreme pro-abortion positions.”

In their totality, the laws could have the greatest impact on those seeking abortions who already face barriers to medical care, Stahl said.

”The laws we’re challenging today would have the greatest impact on people in rural areas, Native women, people with low incomes, and those facing barriers to travel,” she said. “It is absolutely dishonest to claim, as some legislators have, that these laws make patients any more safe than they already are under the care of skilled reproductive health providers.”