Judge grants temporary restraining order against Montana abortion restriction bill

Hearing set for Tuesday on preliminary injunctions sought against abortion bills, rule

By: - May 18, 2023 11:06 am
Supporters at a rally for sexual and reproductive health care held in the Montana State Capitol on April 7, 2023.

Supporters at a rally for sexual and reproductive health care held in the Montana State Capitol on April 7, 2023. (Photo by Blair Miller)

A Lewis and County District Court judge granted a temporary restraining order Thursday blocking the newly signed bill that puts a ban on most dilation and evacuation abortions in Montana and set a hearing for next Tuesday to consider a preliminary injunction in the case.

Judge Mike Menahan wrote in his ruling Thursday morning that the plaintiffs in the case – Planned Parenthood of Montana and its chief medical officer Dr. Samuel Dickman – had shown that the main three sections of House Bill 721, which Republican Gov. Greg Gianforte signed on Tuesday, would cause them and their patients immediate irreparable harm.

“The balance of equities weighs in favor of granting Plaintiffs and their patients temporary relief. Whereas Plaintiffs and their patients face immediate, irreparable harm, Defendants will not be harmed by the issuance of a Temporary Restraining Order that preserves the status quo. Finally, the public interest weighs in favor of preserving the status quo and in ensuring access to constitutionally protected health care services pending adjudication of a preliminary injunction,” Menahan wrote in his order.

Further, he said that the facts Planned Parenthood of Montana has already established, if proven true, that the bill “presents a prima facie constitutional violation” and that the bill’s immediate effective date would cause the plaintiffs immediate and irreparable harm if the new law was not enjoined.

The case will be back in front of Menahan on Tuesday for the preliminary injunction hearing, in which the plaintiffs and defendants – the state of Montana, Attorney General Austin Knudsen, the Montana Department of Public Health and Human Services, and its director Charlie Brereton – will argue why the bill should or should not continue to be blocked.

The temporary restraining order specifically applies to the meat of HB721, sections 3 through 5, which contain the language that bans dilation and evacuation abortions except in a medical emergency, reporting requirements for practitioners who perform them in the event of an emergency, and allows a practitioner to have their license suspended for performing the procedure if it is not because of a medical emergency.

Planned Parenthood of Montana, which has also been granted a temporary restraining order against House Bill 575 and a new DPHHS rule restricting Medicaid-covered abortions, is committed to challenging laws signed by Gianforte restricting abortion access, said Martha Fuller, its president and CEO.

“We’re glad the district court has once again recognized the grave harm these anti-abortion laws will have on people seeking basic health care and stepped in to grant this much-needed relief,” Fuller said in a statement. “Politics has no place in the exam room and we will not stand by as lawmakers race to take away access to abortion and strip us of our personal freedom.”

Tuesday’s hearing will also include the requests for preliminary injunctions on House Bill 575 and the DPHHS rule, the latter of which Planned Parenthood of Montana, All Families Healthcare and Blue Mountain Clinic sued the state over.

Planned Parenthood of Montana refiled its request for a temporary restraining order and injunction Tuesday after Gianforte signed HB721 and several other abortion restriction bills. The organization had originally filed suit over the bill on April 10, but the judge rejected the request at the time because the bill had not been signed into law.

In the refiled request, Planned Parenthood of Montana argued that because the law goes into effect immediately, their patients would be harmed because they would no longer be able to seek the commonly used procedure.

The procedure is the most comment method used for abortions for pregnancies 15 or more weeks on from conception in Montana and is commonly referred to as “surgical abortion.”

The organization’s attorneys argue that the measure violates the Montana Constitution’s right to privacy, which the Montana Supreme Court said in the State vs. Armstrong decision applies to medical decisions between a doctor and patient and extends to abortions.

Last week, the court affirmed that decision when it ruled that advance practice nurses can perform abortions in Montana.

“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 unanimous decision.

In the state’s response to the motion for a temporary restraining order, the Department of Justice argues the new law “does not prevent a single woman from having an abortion.”

“Instead, it prohibits a barbaric procedure that causes grievous pain to the unborn child and has substantial health risks for the mother,” attorneys for the DOJ wrote in their filling, additionally arguing the law – which they refer to as the “Dismemberment Law” – does not infringe on the state constitution’s right to privacy.

The DOJ further argues that the Armstrong decision was “wrongly decided and should be overturned” – which has been the common stance of the Gianforte administration.

The department’s attorneys say the Supreme Court in that decision “ignored the intent of the framers to leave that issue to the people’s elected representatives” and said the court’s holding has “no grounding” in the constitution or the state’s history or tradition.

Even so, the DOJ attorneys argue that HB 721 does not infringe on the Armstrong decision because it prohibits a specific procedure but allows women to use other pre-viability procedures, even though the dilation and evacuation method is the one most commonly used after 15 weeks’ gestation.

The DOJ also cites a factsheet from the Charlotte Lozier Institute, an anti-abortion think tank whose website says it uses research “to educate policymakers, the media, and the public on the value of life from fertilization to natural death.”

And the attorneys argue that the new law does compel the public interest, saying it “protects unborn children from brutal and inhumane procedures and their mothers from drastic health complications that can result from a D&E abortion.”

Kaitlin Price, a spokesperson for the Governor’s Office, criticized the original timing of the lawsuit and said Gianforte was committed to anti-abortion measures.

“The governor is committed to protecting the lives of unborn babies and believes dismemberment abortion for non-therapeutic or elective reasons is a barbaric practice, dangerous for the mother, and demeaning to the medical profession,” Price said in a written statement.

The Department of Justice did not immediately respond to requests seeking comment Thursday morning. Tuesday’s preliminary injunction hearing is scheduled for 1:30 p.m., at the Lewis and Clark County District Court in Helena.

Editor’s note: This story has been updated to include comments from the Governor’s Office.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.