District court judge temporarily blocks Montana bills that restrict abortion
Plaintiffs All Families Healthcare, Planned Parenthood of Montana, Blue Mountain Clinic, testify in court against state on Medicaid abortion restriction
Judge Mike Menahan speaks from the bench in Lewis and Clark County District Court on Tuesday May 23, 2023. (Photo by Nicole Girten/Daily Montanan)
In an order from the bench Tuesday, a district court judge temporarily blocked abortion bills recently signed into law regarding surgical abortion restrictions, ultrasound requirements and Medicaid abortion restrictions, as well as a similar rule on Medicaid abortions put in place by the state health department.
Judge Mike Menahan said the focus of his decision to issue the preliminary injunctions was the impact to the fundamental right of the patient, which he said was based on evidence and testimony provided in court.
Abortion is protected in Montana under the state Supreme Court decision Armstrong v. State and upheld in the Weems decision made earlier this month. In the Armstrong decision, justices found the state’s constitutional protection of privacy protects the right to an abortion.
Menahan blocked the bills after hearing arguments the same day in a handful of cases filed from bills passed in the recent legislative session. Restricting access to abortion was a focus of the Republican supermajority and of Republican Gov. Greg Gianforte, who held a signing ceremony celebrating the “pro life, pro family” legislation.
Bills enjoined were the following:
House Bill 575: This bill bans abortions at 24 weeks and requires an ultrasound for an abortion, which would impact telehealth abortion care. The bill was sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls.
House Bill 721: Sponsored by House Speaker Matt Regier, R-Kalispell, the bill bans the most common surgical abortion procedure after 15 weeks pregnancy, called a dilation and evacuation procedure, which plaintiffs said was effectively a 15-week abortion ban.
HB 862: Sponsored by Rep. Mike Hopkins, R-Missoula, it prohibits Medicaid from funding abortions. Medicaid currently funds abortions under three circumstances: rape or incest, life of the mother at risk, or if it is deemed medically necessary.
HB 544: From Rep. Jane Gillette, R-Bozeman, the legislation prohibits Montana Medicaid abortion funding for medically necessary abortions, which makes up the majority of Medicaid abortions in the state.
In Lewis and Clark County District Court, Menahan also enjoined a recently enacted rule from the Department of Public Health and Human Services requiring Medicaid abortion providers seek prior authorization for medically necessary abortions, and requiring patients to receive a physical exam.
All Families Healthcare, Blue Mountain Clinic, and Planned Parenthood of Montana were behind the Medicaid rule lawsuit. Planned Parenthood of Montana, along with Chief Medical Officer Dr. Samuel Dickman, were behind the case against HB 575 and HB 721.
Planned Parenthood of Montana President and CEO Martha Fuller released a statement following the ruling celebrating the court’s decision.
“Montanans deserve better than having their personal medical decisions in the hands of anti-abortion politicians, looking to undermine our right to privacy and take away bodily autonomy to score cheap political points,” Fuller said. “No politician and no ban should get in the way of Montanans’ freedom to control their own bodies, lives, and futures.”
HB 575: Ultrasound requirement
Planned Parenthood argued that requiring an ultrasound would provide too much of an impediment for people seeking abortion care through telemedicine, saying it could require patients to drive long distances, which in some cases might not be possible.
Dickman said in his testimony that a woman from one of Montana’s reservations that he saw via telemedicine didn’t have a car to use to go to a clinic, which was far from her home.
“The patient simply wouldn’t have been able to get to one of our health centers without being able to connect via telemedicine and accessing the direct to patient medication abortion service,” Dickman said.
The state argued that there are over 60 hospitals in the state and that patients could go and have an ultrasound performed and have the medical records sent to an abortion provider in the state.
“The fact that I have to go to the post office to get a passport doesn’t ban my ability to get a passport,” said attorney Thane Johnson.
Dr. George Mulcaire-Jones, an obstetrician-gynecologist out of Butte brought by the state, testified that ultrasounds were a “standard of care” to determine gestational age and fetal viability as well as a way to protect the abortion provider’s liability.
However, Dickman testified that a person providing the last date of their menstrual period, to determine if they’re within the 11-week window for medication abortion, “in large studies have been shown to be safe, effective ways of helping to facilitate abortion access.”
HB 721: D&E procedure/15 week abortion ban
On behalf of the state, Johnson asked Dr. Steven Joseph Ralston about the procedure itself, calling for testimony on fetal material being removed “part by part.” The state argued, as Regier did when he introduced the bill, that there are other methods of abortion and this was simply restricting one procedure.
However, Planned Parenthood asked about the alternative procedures that providers would be left as final options, including sticking a needle through the skin and into the amniotic fluid.
Ralston said this method does have an up to 10% failure rate and can cause complications for the patient and is complicated to perform as a practitioner. That’s in part because depending on the patient, the person can have internal obstructions to the uterus like tumors or scar tissue, making the procedure “more difficult and sometimes impossible.”
Dickman testified D&E procedures are the “safest and most effective method of abortion after 15 weeks.”
Medicaid Abortion Restrictions
The state argued DPHHS Montana Medicaid was “likely funding elective abortions, in violation of federal law, due to insufficient documentation of medical necessity,” citing a legislator requested report on Medicaid abortions.
The vast majority of claims in Montana fall under the “medically necessary” category. Montana goes beyond federal guidelines in the Hyde Amendment, which restrict federal funds to pregnancies from rape, incest or risk to life of the mother. Montana gets the authority to go beyond federal limits from the Jeannette R. v. Ellery decision.
Providers fill out a state issued form with abortion claims that require they check the appropriate box for the reason the patient’s procedure is covered, with space for a narrative provided for providers to give reasoning for medical necessity.
Montana Medicaid Director Michael Randol said he was concerned about whether the department was paying for medically necessary abortions or whether there were “some abortions that were not medically necessary, so that’s why we did the review.”
Plaintiffs argued in closing that Randol conceded there was 100% compliance to every single form that the department reviewed, and included a reason for medical necessity, and that providers do their jobs with integrity, disputing the claim of fraud from the state.
The state argued Medicaid needs a documentary process to establish which abortions are eligible and that plaintiffs would not be injured by the additional requirements.
Plaintiffs argued that the rule and the two House bills were unconstitutional, and that medical providers are qualified to make the determination of medical necessity, not the state and not a third party contractor.
Menahan said his official order will come down in time, as other judicial matters are before him and taking priority.
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