Healthcare, abortion providers warn: New Montana abortion rules will be challenged in court

Letter asks state to delay implementation of rules because of constitutional concerns

By: - January 23, 2023 5:17 pm
Sen. Keith Regier, R-Kalispell, testifies in favor of Senate Bill 154 in front of the Senate Judiciary Committee on Tuesday, Jan. 17, 2023.

Sen. Keith Regier, R-Kalispell, testifies in favor of Senate Bill 154 in front of the Senate Judiciary Committee on Tuesday, Jan. 17, 2023. (Photo by Blair Miller, Daily Montanan)

As the State of Montana considers changing rules to make getting an abortion using Medicaid more difficult and restrictive, a group of healthcare providers sent a letter via their attorneys warning the state and lawmakers that adopting the proposed rules will lead to a lawsuit.

The letter, sent on Monday to Paula Stannard, the chief legal counsel for the Department of Public Health and Human Services, says new rules would require more paperwork by doctors, restrict which medical providers can perform abortions, and make the department pre-authorize any abortions for Medicaid. The letter argues those changes are not legal or consistent with rulings by Montana’s courts. The courts have been called upon repeatedly to intervene in abortion laws passed by the legislature.

“It’s not surprising that pro-abortion activists are lining up to force Montana taxpayers to fund elective, nontherapeutic abortions under Medicaid,” said DPHHS Director Charlie Brereton. “We’ll continue reviewing Montanans’ comments on the proposed rule which seeks to protect the integrity of our Medicaid program.”

Representatives from the governor’s office and the Montana Attorney General’s Office did not respond for comment Monday afternoon.

A spokesperson from DPHHS earlier told the Daily Montana the agency would consider all public comments received on the proposed changes before the Jan. 20 deadline and finalize its rules following the review. DPHHS did not provide a timeline for a final decision and said procedures don’t require one.

The letter cites a number of high-profile cases that have established the right to an abortion in Montana, referencing the landmark 1999 decision, Armstrong vs. State, which said the state’s constitutional right to privacy included the right to be free of government interference in medical decisions.

Two other cases in Montana courts have also enjoined some of the action that DPHHS is proposing, including treating nurse practitioners or physicians assistants differently than medical doctors, saying they would not be reimbursed for Medicaid-supported abortions – a topic that the Montana Supreme Court has ruled on twice. It has previously said that the state has no legal reason from prohibiting licensed, qualified mid-level practitioners to perform abortions.

The letter expresses concern that new Medicaid abortion rules instituted by DPHHS would take place immediately, rather than pausing to prepare for their implementation – a more common occurrence.

“If the proposed rules take effect, they will have an immediate, grave, and irreparable impact on the health of patients in Montana seeking abortion care and their constitutional rights,” the letter said.

The letter warns that “should the rules become effective as proposed, Planned Parenthood of Montana and other providers intend to seek declaratory and injunctive relief against the new laws.”

Instead, the letter asks the department to delay the effective date to 90 days, or agree to pause the rules to give a court time to rule on the legality and constitutionality of the rules.

“Should the department refuse to provide information regarding the planned publication date of its adoption notice or consider these proposals, Planned Parenthood of Montana and other providers will need to seek immediate injunctive relief to protect their patients, causing the department to expend further time and expense,” the letter said.

The letter asks for a response by the end of the day on Wednesday.

“The Department’s proposed changes to the Medicaid program will deny low-income Montanans access to abortion care services,” the letter said. “The proposed rules invade rights secured by the Montana Constitution.”

Letter to state abortion care

Deputy editor Keila Szpaller contributed to this report.

Editor’s note: This story has been updated to reflect comments by the Montana Department of Health and Human Services.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.