The law barely lasted 24 hours: Judge issues restraining order against new abortion requirement

House Bill 575 would have required documentation, ultrasound before abortion

By: - May 4, 2023 5:28 pm

A Lewis and Clark County District judge has granted a temporary restraining order blocking the state from allowing a newly signed abortion restriction law from being enforced until after a hearing because the law is likely a violation of the Montana Constitution.

Judge Mike Menahan issued the temporary restraining order on Thursday afternoon, which stops House Bill 575 from becoming an enforceable law just a day after Gov. Greg Gianforte signed the measure, along with four other anti-abortion restrictions, and five more on the way to his desk. He pledged to sign those measures as well.

House Bill 575 is part of several abortion measures that are being challenged in district court. The new law would have required healthcare providers to perform an ultrasound on a woman who seeks an abortion, and also requires written documentation to be kept on file that documents that the fetus is not viable. The bill defines viability at 24 weeks, effectively banning it after that point.

Opponents to the bill during the 2023 legislative session criticized the measure brought by Rep. Lola Sheldon-Galloway, R-Great Falls, because it added unnecessary procedures, paperwork and expense, while interfering with the medical care and privacy of patients.

Menahan said in the three-page order that the bill “impermissibly infringes on Montanans’ constitutional right to a pre-viability abortion both by requiring all patients to undergo an ultrasound before receiving an abortion and by suggesting advance practice registered nurses cannot perform abortions.”

A hearing for a preliminary injunction was also set for 11 a.m., May 12 at the Lewis and Clark County Courthouse.

Abortion has been repeatedly declared legal and protected by the Montana Constitution under the landmark Montana Supreme Court Ruling in 1999, State vs. Armstrong, which said that a citizen’s right to privacy includes medical decisions made by a doctor and patient.

Planned Parenthood sought the immediate restraining order on Wednesday, even as the governor was cheering about the number of anti-abortion laws passed by the Legislature.

“Our Declaration of Independence clearly states that we are endowed by our creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness,” Gianforte said. “But without life, there is no liberty or the pursuit of happiness.”

On Thursday, the leader of Planned Parenthood of Montana said the organization continues to go to court to enforce Montanans’ rights.

“As Montana courts have reaffirmed time and time again, the rights to privacy and access to abortion are clearly protected under our state constitution. We are pleased that the court took action to block this dangerous law today and hope its ruling will send a message to anti-abortion lawmakers who continue trampling on our rights,” said Martha Fuller, CEO of Planned Parenthood of Montana.  “HB 575 represented legislative interference and unwarranted intrusion into the patient-provider relationship. But this isn’t about politics for our patients, it’s about their health and their lives. Despite these ongoing attacks, Planned Parenthood of Montana is prepared to do everything in our power to ensure abortion access remains permanently secured in our state.”

Temporary Restraining Order and Order Setting Hearing on Plaintiffs' Motion for Preliminary Injunction on House Bill 575 (Direct To Patient Medication Ban)

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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.