Montanans calling on the government to protect abortion in state law and stop other bills they say are targeted at people’s individual health care rights rallied at the state Capitol in Helena on Friday, April 7, 2023. (Photo by Blair Miller, Daily Montanan)
Planned Parenthood of Montana and its chief medical officer sued the state and the Department of Public Health and Human Services on Monday in an attempt to block a bill awaiting the governor’s signature that would ban a common abortion procedure and penalize medical professionals who provide them.
The lawsuit was filed in Lewis and Clark County District Court against the state, DPHHS and its director, Charlie Brereton, and asks a judge to issue restraining orders and injunctions barring the state from implementing House Bill 721, sponsored by House Speaker Matt Regier, R-Kalispell, should Republican Gov. Greg Gianforte sign the measure into law. The bill is one of several from Republicans seeking to restrict abortion access this session.
A legal review note attached to the bill in February noted that it “may raise a constitutional conformity issue” in that it “infringes upon a woman’s right to seek and obtain a pre-viability abortion” and conflicts with legal precedent.
The lawsuit from Planned Parenthood of Montana and its chief medical officer, Samuel Dickman, M.D., says that House Bill 721 taking effect would enact immediate and irreparable harm on people seeking abortions through dilation and evacuation procedures, which are often used in the second trimester for abortions and miscarriages.
The lawsuit says HB721 would create an effective ban on pre-viability abortions, which the plaintiffs argue is a violation of Montanans’ right to privacy under the state constitution. The bill will take effect immediately should it be signed by Gianforte.
Kaitlin Price, a spokesperson for the Governor’s Office, said in an email Monday afternoon that Gianforte had yet to receive the bill from lawmakers.
“The fact that the bill hasn’t even come to the governor’s desk for his review and Planned Parenthood is already running to court tells Montanans everything they need to know about the far left, pro-abortion group and its extreme tactics,” Price said.
The dilation and evacuation procedure involves removing a fetus from a person’s uterus using instruments like forceps and suction. The lawsuit says that starting around 15 weeks from conception, the method is the only one available in outpatient settings in Montana, and is one found to be medically preferred because of a low risk of complications.
The procedure is more often used in the second trimester of a pregnancy, while medication abortions are more often used during the first trimester. Last week, a federal judge in Texas revoked the U.S. Food and Drug Administration’s approval of a pill often used for medication abortions – a ruling which the U.S. Department of Justice appealed on Monday.
Regier’s bill would additionally subject dilation and evacuation abortion providers to a felony charge punishable by up to a $50,000 fine and a minimum of five years in prison.
Regier testified earlier this year that women could still obtain abortions by other methods should his bill become law, including induced labor and abortion pills.
“The choice before you is one about a procedure,” he said at a February House committee hearing. “Are we as a state going to continue to allow the tearing apart of a living baby as one acceptable method of abortion?”
The lawsuit says the bill violates the state constitution, the Montana Supreme Court’s decision in the 1999 Armstrong case that enshrines a patient’s right to medical privacy, including abortion, and that there is no compelling state interest for Montana to make the bill law.
“Given that there is no medical or scientific support for targeting abortion beginning at approximately 15 weeks [of a woman’s last menstrual period], and that the [dilation and evacuation] Ban will not safeguard but would actually harm women’s health, there is no state interest—let alone a compelling one—to support these restrictions,” the lawsuit states.
The plaintiffs also filed a request for an ex parte temporary restraining order, asking that a judge block the measure from becoming law and being enforced before the government has a chance to respond. The legislature has sent a separate bill to the governor that would keep those restraining orders from being enforced against the government.
“Absent emergency injunctive relief, Montanans will be irreparably harmed by denial of their constitutionally protected right to access pre-viability abortion care and will suffer irreversible health consequences,” attorneys for Planned Parenthood wrote in their request.
They wrote that without an immediate restraining order and preliminary injunction, Montanans will suffer violations of their constitutional rights and potential health complications, while the state would suffer “no harm from allowing patients to receive safe and effective health care.”
The request for a temporary restraining order says the plaintiffs provided notice to the state and other defendants on Monday but argued an ex parte order should be granted because “the law’s immediate effective date does not allow meaningful time for the Defendants to respond before Plaintiffs and their patients begin suffering irreparable injury” and because the governor could sign the bill “at any moment.”
“Irreparable injury will result unless the status quo is maintained until this Court can conduct a show cause hearing,” the restraining order request states.
Regier’s bill passed its final hurdle in the legislature with a 31-19 final vote in the Senate on Friday, in which three Republicans voted against the bill. Democrats walked out of the Senate Judiciary Committee hearing on the bill in late March over the rhetoric they called “inflammatory.” The measure passed the House in early March on a party-line vote.
A spokesperson for DPHHS declined to comment on the lawsuit. The Department of Justice did not immediately respond to an email seeking comment on the lawsuit on Monday afternoon.
In a statement, Planned Parenthood of Montana President and CEO Martha Fuller said Republican lawmakers were “hell-bent” on banning abortion “method by method, law by law” and said Regier’s bill would put lives at risk if it is signed.
“Providers should be able to use their medical training, judgment, and expertise to provide the care that is best for each patient – without political interference or fear of criminal prosecution,” Fuller said. “H.B. 721 may pit Montana politicians’ agenda against patients’ safety and well-being, but evidence, facts, and the rule of law are on our side.”
Editor’s note: This story has been updated to reflect DPHHS declined to comment on the lawsuit.
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