Update: Judge blocks abortion laws set to go into effect Friday for up to 10 days

By: - September 30, 2021 5:55 pm

The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General’s Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).

Yellowstone County District Judge Michael Moses has suspended three laws seeking to restrict abortions in Montana from going into effect at 12 a.m. Friday.

Moses who was assigned the case Thursday afternoon said he has not had adequate time to review the entirety of the request for a preliminary injunction from Planned Parenthood of Montana, but said he is issuing the temporary restraining order to maintain the status quo until he can fully review the case. The order will remain in place for 10 days or until Moses makes a decision regarding the motion by Planned Parenthood for a preliminary injunction.

The Court cannot possibly make a decision as to the  Plaintiff’s Motion for a Preliminary Injunction without adequate time to review the entirety of the record, including all of the arguments, briefs, and transcripts previously submitted. This is a case of extreme constitutional importance,” Moses said in his order.

Moses was assigned to the case after a last-minute effort by the state Attorney General’s Office to remove Judge Gregory Todd for alleged bias. Todd deemed himself disqualified in a Thursday afternoon filing.

Todd decided to step down after consultation with the Supreme Court, according to a Yellowstone County court clerk.

Wednesday, the Attorney General’s Office filed a request that Todd disqualify himself from the case, and Thursday, the AG filed a request that Todd be disqualified to the Supreme Court, which handles cases of alleged bias. In the suit, the state says Todd “expressed personal bias and prejudice against the state” during a preliminary injunction hearing on September 23.

Moses is now the fourth judge to be assigned to the case.

The laws seeking to restrict access to abortions in Montana would have gone into effect on Friday. Planned Parenthood of Montana, which first filed its request for a preliminary injunction to stop the bills from being enacted in August, re-upped its request on Thursday to the Montana Supreme Court.

“The State’s move to disqualify the judge just hours before his expected ruling is an open attack on Montanans’ constitutional right to privacy,” said Martha Stahl, president and CEO of Planned Parenthood Montana, in a statement. “This morning, Planned Parenthood of Montana, on behalf of its patients, filed a petition for emergency relief at the Montana Supreme Court to prevent the laws from going into effect as a result of the government’s outrageous delay tactics.”

The Supreme Court said it would not take the case because Todd disqualified himself and another Yellowstone District Court judge was assigned to the case.

“Because the motion for preliminary injunction remains pending in that case and it is now before a judge in jurisdiction, the circumstances that would counsel this Court’s immediate intervention are no longer present,” the supreme court said in the filing denying Planned Parenthood’s request for supervisory control.

In its response to Planned Parenthood’s request to the Supreme Court, the state pushed back on the narrative the state is attempting to “short circuit judicial review” by filing the motion to disqualify Todd on Wednesday. Solicitor General David Dewhirst, who is representing the state, said the state filing the motion to disqualify Todd was “entirely dictated by the receipt of the transcript” from the preliminary injunction hearing on Sept. 23, which the state did not receive it until after 5 p.m. on Sept. 28.

“[Plaintiffs] claim that this motion was, in fact, a dilatory tactic, and that the State waited almost a week to file the motion. These characterizations are false, and they directly contradict the facts to which I attested, under oath and in good faith, just yesterday,” Dewhirst wrote in the state’s response filing to Planned Parenthood’s request to the supreme court to temporarily block the laws.

Planned Parenthood is seeking a temporary block to House Bills 136, 140, and 171, arguing they violate constitutional privacy protections.

Restrictions in the bills include a ban on most abortions after 20 weeks gestational age, an end to telehealth provision of medication abortions, the prohibition of insurance obtained from the Affordable Care Act from covering abortions, and requirement providers ask those seeking an abortion if they’d like first to view or hear an ultrasound.

Shortly after the state filed its request late Wednesday night, the Yellowstone County clerk prematurely filed a substitution form that assigned the case to Judge Rod Souza. A clerk for Todd said the filing had been walked back pending legal review from the Supreme Court. Later, Moses was assigned the case.

At the center of the state’s request was an exchange between Todd and Dewhirst at the preliminary injunction hearing on September 23.

After Todd suggested lawmakers were legislating “additional medical standards,” Dewhirst responded, “That’s probably accurate.”

Then  Todd made what the state called a remark about an ongoing legal battle between the Legislature and the judiciary.

“Like they’ve done in the judiciary as well. But that’s a different topic, right?” Todd said.

“I’m not sure I understand what you’re talking about,” Dewhirst responded.

Todd is a key figure in the battle between the judiciary and Legislature as he was the president of the Montana Judges Association, which sent out an internal poll asking judges to weigh in on proposed legislation that would change how judicial vacancies are filled. The poll spurred the Republican-controlled Legislature to launch an investigation into the judiciary — forming a Select Committee on Judicial Transparency and Accountability.

“Judge Todd’s comment was inappropriate and demonstrates that he is unable to separate his views about the legislature and the Attorney General from the instant case,” Dewhirst wrote in the suit. Additionally, the motion says Todd’s comment “calls into question his ability to maintain an ‘open mind’ to the state’s arguments.”

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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