Montana court voids law preventing nurse practitioners from performing abortions

Court: Right to privacy protects patient’s ability to choose provider

By: - February 25, 2022 6:24 pm

A Montana district court struck down a 2005 state law Friday afternoon that prevented advance nurse practitioners from performing abortions, a restriction that plaintiffs said jeopardized access to abortion in a state with relatively few practitioners.

Lewis and Clark County District Court Judge Mike Menahan rooted his decision in the Montana Supreme Court’s landmark 1999 ruling in Armstrong v. State, in which the high court found a law preventing certified physicians assistants from performing abortions violated the Montana Constitution’s acknowledgment of a “fundamental privacy right” to obtain an abortion from a licensed health care provider of one’s choice.

“The Montana Constitution protects not only a patients’ right to obtain lawful medical procedures, but also the patient’s right to choose the health care provider who performs the procedure if the medical community deems the health care provider qualified,” Menahan wrote in his opinion.

In 2018, Helen Weems, a certified nurse practitioner with a clinic in the Flathead, challenged the state law. Menahan blocked the state from enforcing the restriction while litigation played out, a decision the state appealed to the Montana Supreme Court. In 2019, a divided high court affirmed the district court’s decision on the stay, shielding Weems from prosecution until Menahan ruled on the legal challenge.

The American Civil Liberties Union of Montana, which along with the Center for Reproductive Rights represented Weems, said Friday’s ruling extends the ability of advanced nurse practitioners across the state to provide abortion services.

“We are thrilled that Helen Weems will be able to practice her chosen profession without interference from lawmakers and politicians,” said Alex Rate, legal director at the ACLU of Montana, in a press release. “This ruling also made it clear that patients’ rights to privacy – including their choice to have an abortion – cannot be limited without a compelling state reason.”

The Board of Nursing is a statutory entity that regulates and licenses nurses in the states. The board previously determined that abortion procedures are not “significantly different” than the procedures that nurse practitioners perform generally and that there was no need for rules restricting them from performing abortions specifically. Nurses certified by the board, the court noted, are graduates of accredited programs, and advanced nurse practitioners can expand the scope of their practice by receiving further training and certification.

The state has argued that the Legislature has a compelling interest in protecting Montana citizens from unsafe medical practices. Attorneys for the state questioned the competence of advance practice nurse practitioners to perform abortion services, and said that physicians assistants perform their services under the supervision of a doctor, “an additional layer of patient protection.”

However, Menahan said the state did not reach that level of compelling interest, and that the same privacy rights enshrined in Armstrong are in play here.

“Based on the precedent in Armstrong and the State’s failure to present a compelling argument as to why the legislature is better able to determine qualifications of potential abortion providers than the state-created medical licensing board, the court finds the Montana Board of Nursing to be the appropriate source of authority for determining APRNs’ competency to provide abortion procedures,” Menahan’s ruling reads.

The American College of Obstetricians and Gynecologists opposes restrictions such as Montana’s. Previous research has indicated that safety outcomes for patients whose abortions are performed by advanced practice nurses were equivalent to those performed by doctors.

The Montana Legislature passed several bills restricting access to abortion in the 2021 legislative session, the first in 16 years where Republican-backed abortion bills didn’t risk veto by a Democratic governor. Several of those bills are subject to litigation that also invokes the right to privacy.

Among these bills is a ban on most abortions after 20 weeks pregnancy. A District Court in Billings has blocked that and two other abortion bills passed last year for the duration of litigation. Montana Attorney General Austin Knudsen has appealed that decision to the Montana Supreme Court.

A spokesperson for Knudsen told the Associated Press that the office is reviewing Menahan’s Friday order to determine its next steps.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.