Montana Supreme Court says advance practice nurses can perform abortion care

State of Montana said the case was about patient safety, not whether abortion was constitutional

By: - May 12, 2023 3:47 pm

Anti-abortion and abortion rights activists protest during the 50th annual March for Life rally in front of the U.S. Supreme Court on January 20, 2023 in Washington, D.C. (Photo by Chip Somodevilla | Getty Images)

The Montana Supreme Court unanimously upheld the decision of a Lewis and Clark County District Court judge who ruled that advanced-practice nurse practitioners and other mid-level medical providers can perform both surgical and medication abortion in Montana, in a ruling issued Friday.

The State of Montana and the Legislature argued that due to the risk of complications that only a medical doctor could perform abortions, cutting out advanced practice registered nurses. The lawsuit was brought by two advance practice nurses, including Helen Weems, whose previous legal challenges as a provider resulted in a similar successful victories at the state’s Supreme Court.

The case dates back to 2018 as the state’s lawmakers have tried to continuously curb the number of providers who can perform abortion services because of concerns about abortion complications.

However, in the case before district court judge Mike Menahan, the ACLU of Montana and the Center for Reproductive Rights, which represented the nurse practitioners, pointed out that procedures used by medical professionals in abortions were identical to those performed for miscarriages and had no higher documented risks. Furthermore, the two drugs prescribed for abortions, misoprostol and mifepristone, have fewer risks than many over-the-counter drugs or other medication the same mid-level practitioners can provide.

“As a comparison, abortion care has a lower prevalence of complications than other common procedures such as wisdom tooth removal (7%) and tonsillectomies (between 8 and 9%),” the court noted.

Montana’s high court leaned heavily on the 1999 decision, Armstrong vs. State, which said that the state’s constitutional guarantee of the right to privacy includes the right of a woman to choose her own medical provider. The decision protects the right to an abortion in Montana. The court said that while practicing medicine in the state is not a right, the state cannot selectively restrict the practice of medicine without having a reasonable argument for doing so.

“We explained that the right of privacy is implicated when a statute infringes upon a person’s ability to obtain or reject medical treatment that is lawful, but it does not follow that the right is implicated when a statute regulates a particular medication,” the ruling said. “We have recognized ‘the state of Montana has a police power by which it can regulate for the health and safety of its citizens.’ The Legislature retains its police power when it creates agencies and boards and delegates power to them.”

The district court and the trial court both established that those state boards, as well as the respective medical organizations, have allowed advanced nurse practitioners to perform abortions, as well as prescribe medications and engage in procedures with clinically higher risks.

However, the Montana Attorney General’s Office argued that the court’s decision placed Montana residents at higher risk, disregarding public safety.

“The state Supreme Court has become disgracefully radicalized and out of touch with Montanans. This case was not about the right to abortion – it was about whether women have a right to an elevated standard of care during an abortion. The Montana Supreme Court said ‘no’ and lowered the standard of care set by the Legislature, effectively constitutionalizing the right of unqualified individuals to perform unregulated abortions,” said Attorney General spokeswoman Emilee Cantrell. “This decision is a loss for Montana women who will be less safe because of the state Supreme Court.”

However, Justice Laurie McKinnon, writing for the court, said the state had failed to provide any evidence that a patient’s health is more at risk with an advanced practice nurse.

The court said in order to do that, though, the state had to show that there was “clearly and convincingly” a higher risk with mid-level practitioners that would have justified the rule. It found the state had not produced any evidence.

“The record is devoid of any evidence that (advanced practice nurse) providing abortion care present a medically acknowledged, bona fide health risk to Montana women,” the ruling said. “The state’s argument is detached from overwhelming evidence present to the District Court that abortion care is one of the safest forms of medical care in this country and world, and APRNs are qualified providers.

“The state has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk.”

Medical groups hailed the decision, saying it affirmed the science behind the decision.

“Advanced practitioners have long provided compassionate and quality abortion care throughout Montana. We are pleased to see the Montana Supreme Court recognize the scope of practice of APRNs and physicians assistants to continue to deliver care. Throughout this legislative session, we’ve seen continued attacks on essential and life saving health care including abortion and gender-affirming care, and Blue Mountain Clinic is committed to delivering care and advocating on behalf of our patients and staff,” said Aileen Glezier on behalf of Blue Mountain Clinic in Montana and the Susan Wicklund fund. “We’re grateful to Helen Weems at All Families Healthcare and the Center for Reproductive Rights for challenging this law and advocating for healthcare providers across communities in Montana.”

Planned Parenthood of Montana also said that more medical professionals who can provide care means more Montanans have access to the healthcare system. It issued a statement after the ruling:

“Planned Parenthood of Montana is pleased to see that the Montana Supreme Court has affirmed the ability for Advanced Practice Registered Nurses and Physician’s Assistants to provide abortion care in Montana. These medical professionals bring so much value in their knowledge and care to our state, and patients will be better served by this decision. Access to abortion care in Montana is essential and we are happy that Advanced Practice Registered Nurses and Physician’s Assistants can provide the care that they are passionate about providing.”

The Department of Public Health and Human Services recently put into effect a new rule that requires providers of Medicaid abortions to seek prior authorization for medically necessary abortions, require patients to receive a physical exam and require abortions to be conducted by a physician, excluding nurse practitioners. The rule is now under a temporary restraining order in Lewis and Clark County District Court.

House Bill 575, which mirrors some of the concepts of the DPHHS rule and was signed into law last week, is similarly under a temporary restraining order in the same court.

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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.