Gianforte signs additional abortion restriction bills; one court challenge already refiled
Planned Parenthood of Montana renews ask for temporary restraining order against HB721
Gov. Greg Gianforte claps before signing five abortion laws on May 3, 2023. (Photo by Nicole Girten/Daily Montanan)
Montana Gov. Greg Gianforte signed four more bills this week targeting abortion access, including one that is already being challenged in court, just days after the state Supreme Court again affirmed that abortion is protected under the state constitution’s right to privacy.
Chief among the measures he signed Tuesday is House Bill 721, sponsored by House Speaker Matt Regier, R-Kalispell, which creates a ban in most instances on pre-viability abortions via the dilation and evacuation procedure – the most common method used for abortions for pregnancies 15 or more weeks from conception in Montana. It’s also referred to as a surgical abortion.
At a news conference earlier this month in which the Republican governor signed five other abortion restriction bills, Gianforte called the method “barbaric” and said it was “dangerous” for women and “demeaning” to medical professionals who perform the procedures.
The dilation and evacuation abortion procedure involves a practitioner removing a fetus from a person’s uterus through the use of surgical instruments. It is most often used in the second trimester of a pregnancy, while medication abortions are more often used in the first trimester.
Planned Parenthood of Montana filed a preemptive lawsuit against HB721 on April 10 in Lewis and Clark County District Court, but the judge in the case did not at the time grant a temporary restraining order against it because it had not been signed into law. Now that it has been signed, the bulk of the bill is in effect immediately.
Planned Parenthood of Montana argued in its suit that the immediate ban means people seeking abortions through the dilation and evacuation procedure would suffer immediate irreparable harm if the bill was signed and that the measure violates Montanans’ right to privacy under the state constitution.
The organization refiled its request for a temporary restraining order Tuesday afternoon after the governor signed the bill.
Planned Parenthood of Montana President and CEO Martha Fuller said despite the newly signed law, and the effort to block it, the organization will do “everything possible to provide essential abortion care to our patients.”
“HB 721 is a grave threat to Montanans’ health and safety and must be blocked,” Fuller said in a statement. “Given the law’s immediate effective date, patients across the state can already be denied access to care that was legally available moments before the governor’s signature today. We hope the court will block this dangerous abortion ban.”
As of Tuesday afternoon, that lawsuit, which also challenges House Bill 575, and another targeting the Department of Public Health and Human Services’ rule restricting Medicaid-covered abortions, were set for hearings on plaintiffs’ requests for preliminary injunctions next Tuesday.
Temporary restraining orders have already been granted against both HB575 and the DPHHS rule.
Gianforte’s signing of the bill comes just days after the Montana Supreme Court ruled unanimously that advanced practice nurses can perform abortions in Montana in a decision that also reaffirmed Montanans’ right to abortion access through the constitutional right to privacy.
“Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk,” the justices wrote in their opinion.
Gianforte also on Monday and Tuesday signed three other Republican bills tied to abortion: House Bill 544, which prohibits Medicaid abortion funding for medically necessary abortions; House Bill 862, which prohibits Medicaid from funding abortions unless they are the result of rape or incest, or if the mother’s life is in danger; and House Bill 937, which would have the state license and inspect abortion providers, their facilities and employees.
“I’m proud to round out our legislative session with another suite of pro-life, pro-family bills that protect the lives of unborn babies in Montana,” Gianforte said in a statement.
Now, the nine measures Gianforte identified earlier this month as being priority reproductive health bills have been signed into law. The governor also signed Rep. Courtenay Sprunger’s House Bill 225 on Tuesday, which will provide Montanans who adopt children $5,000 or $7,500 tax credits depending on whether the child was adopted from Montana.
“We can all agree that children in foster care deserve a hope, a family, and a future, and the families willing to open their loving arms to them need our support,” Sprunger, a Kalispell Republican, said in a statement.
But Gianforte also Tuesday vetoed another bill regarding abortion access – House Bill 968, sponsored by Rep. Amy Regier, R-Kalispell. The bill lowered the age that a pregnant girl would be considered an adult from 18 to 16 and made changes to existing law about parental consent for minors receiving abortions.
Gianforte said in his veto letter that parental rights were key in minors considering abortions and that the bill “diminishes this vital role in two ways.”
First, he said, it puts 16-year-olds in the position of considering an abortion without parental consultation, which he said would further isolate and alienate the teenager. Second, he said the bill “allows an abortion specialist to be substituted for the parent,” adding that medical professionals are “no substitute for a parent.”
“Whatever state constitutional rights may or may not exist, they must and always will yield to individual constitutional rights established under the federal constitution,” Gianforte wrote. “Parental rights supersede whatever abortion rights exist in this state.”
Opponents of the abortion bills, including medical providers and Democrats in the legislature, had said during the session they believed most, if not all, of the slate of abortion bills passed by Republicans and signed by Gianforte would be challenged in court.
HB575, which effectively bans abortions after 24 weeks and requires a woman seeking an abortion to first receive an ultrasound before proceeding, was already blocked by a temporary restraining order issued by a Lewis and Clark County District Court judge earlier this month.
The Montana Supreme Court’s 1999 decision in State vs. Armstrong found a citizen’s right to privacy includes medical decisions made between a doctor and patient, which extends to abortions. The decision has been affirmed several times since then.
But Gianforte and much of the supermajority Republican legislature supported more attempts to restrict abortion through several means, and they are expecting litigation on the bills and others that are likely to be challenged in court.
Lawmakers budgeted $2 million during the next biennium for the state to defend bills Gianforte signed from the 2021 session or signs from this session that will, or already do, face lawsuits challenging their constitutionality or lawfulness.
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