Judge halts new Montana Medicaid abortion rule from going into effect

Lewis and Clark District Court will hear arguments for an injunction on May 12

By: - May 1, 2023 7:15 pm

Photo illustration by Getty Images.

A Lewis and Clark County District judge has issued a temporary restraining order against the state from enacting a rule that adds more restrictions to Medicaid patients who seek an abortion in Montana.

District Court Judge Mike Menahan issued the order on Monday that effectively stops the rule from going into effect until a court hearing on May 12, the date set for a hearing on a more permanent preliminary injunction.

The lawsuit challenging the rule, which was set to go into effect this month, would require preauthorization for abortion by the state officials, as well as require an in-person exam by a medical doctor – rules that are not required for non-Medicaid patients.

According to federal law, abortions for Medicaid patients are allowed under three specific conditions: If the abortion is necessary to save the life of the mother; if the pregnancy was the result of rape or incest; and if the abortion is deemed by a provider medically necessary.

The lawsuit challenging the new rule says that bill is effectively a ban on abortion, and that many of the facets of the new rule have already been previously decided as unconstitutional. The lawsuit was filed by Planned Parenthood of Montana, All Families Healthcare Clinic, and Blue Mountain Clinic.

Menahan said he issued the restraining order because the rules likely infringe on the Montana Constitution.

“The rule violates the Montana Constitution’s guarantees of privacy and equal protection, as detailed in the Montana Supreme Court’s decisions in Armstrong v. State,” he said.

That 1999 decision said that the Montana Constitution’s right to privacy extends to abortion providers and patients’ medical decisions, including abortion.

But Menahan also pointed out that other Montana Supreme Court cases established that mid-level practitioners, including physician assistants and nurse providers, were also eligible to perform abortions and that limiting the procedure to doctors alone was also illegal.

“Plaintiffs have also established … that the absence of a temporary restraining order would cause immediate and irreparable injury,” Menahan ruled. “Whereas the state will not be harmed by the issuance of an injunction that preserves the status quo. Defendants have no legitimate interest in enforcing an unconstitutional law…Further, the public interest in preserving the status quo and in ensuring access to safe, constitutionally protected health care services pending adjudication of a preliminary injunction is strong.”

The groups cheered the ruling in a press release on Monday.

“We are incredibly grate that the court stopped this dangerous, unconstitutional new Medicaid rule from going into effect on May 8. When they rejected LR-131 last November, the people of Montana made clear that they do not want the government interfering with their reproductive health care. It shouldn’t matter what zip code you live in, how much money you make, or what insurance you use—everyone deserves access to the full range of reproductive health care services available in Montana,” they said.

Neither the Department of Public Health and Human Services nor the Attorney General’s Office was available for comment Monday.

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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.