Judge grants restraining order blocking abortion licensure requirement from taking effect
Montana’s health department has not made rules to require licenses for such clinics, judge says
Gov. Greg Gianforte claps before signing five abortion laws on May 3, 2023. (Photo by Nicole Girten/Daily Montanan)
Lewis and Clark County District Court Judge Christopher Abbott issued the order in part, he wrote, because the state has not developed any rules by which a clinic could become licensed. He wrote that temporarily blocking the licensure section of the law before it takes effect is “aimed at protecting the parties positions until a hearing can be held.”
The plaintiffs in the case – All Families Healthcare, Blue Mountain Clinic, and Helen Weems, APRN-FNP – will have to show cause to Abbott at an Oct. 30 hearing as to why he should issue a preliminary injunction against the law created this past session by House Bill 937.
The named defendants in the lawsuit are the state of Montana, the Department of Public Health and Human Services (DPHHS), and its director, Charlie Brereton.
Abbott’s restraining order only applies to Section 2(1) of the bill, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls. The law states: “A person may not operate or advertise the operation of an abortion clinic unless the person is licensed by the department.”
Abbott interpreted that as “plainly and unambiguously” prohibiting abortion clinics from operating without a license, he wrote. He said the plain language of the statute means that as of the bill’s effective date, Oct. 1, abortion clinics cannot operate unless they are licensed by DPHHS.
Abortion clinics are not currently licensed in Montana, though their providers are, and Abbott noted in his order there is no way for them to obtain such a license before Oct. 1.
“Before licenses can be issued, the Department must first promulgate rules. The department, however, has neither adopted nor even publicly proposed temporary or final rules to implement HB 937, nor has it otherwise given providers guidance on how they can avoid violations of Section 2(1) in the interim,” Abbott wrote.
Abbott also cites the landmark Armstrong v. State decision and the more recent Weems v. State decision, which affirmed the right to abortion under the right to privacy, saying that “laws significantly inhibiting abortion access are presumptively unconstitutional and can only be enforced if they withstand strict scrutiny.” Strict scrutiny is the highest standard of judicial review.
He said the decisions in Armstrong and Weems, the latter of which found limiting the pool of abortion providers would significantly interfere with a person’s right to privacy, “are controlling authority that remains good law and binds this court.”
“While there may or may not prove to be a compelling state interest in licensing abortion clinics—a question for another day—there is no compelling interest in imposing a mandatory licensure regime while issuing no licenses,” Abbott wrote in his order. “Nor can the Court avoid the constitutional problems with Section 2(1) as written by engrafting onto it an implied impossibility defense, because that would require the court to ‘insert what has been omitted.’”
Aileen Gleizer, a spokesperson for Blue Mountain Clinic, said the granting of the TRO is “critical” because the law was days away from going into effect, and said Abbott’s order again showed that case law in Montana reinforces abortion as a fundamental right under the state constitution.
“I think the decision today is critical for patients seeking abortion care in Montana,” Gleizer said in an interview. “And it’s also, I think, a defeat against extremist lawmakers who are attempting to ban abortion any way they can. And I think what we’re seeing with the decisions from the court is these are unconstitutional. They’re not about safety.”
According to his order, the state had argued the challenge to the law was not ripe because the state could not enforce the new law until new rules are made and approved. He also cited several conversations the plaintiffs had with DPHHS and the Attorney General’s Office in August asking about the potential enforcement of the law and any rulemaking that might be happening.
A Licensure Bureau reported that DPHHS agencies would be discussing those matters internally, and lawyers with the AG’s Office said they were not involved in DPHHS rulemaking nor been in contact with the department about rulemaking under the new law.
“Neither communication gave providers any assurance that they could safely continue to operate after October 1,” Abbott wrote in Wednesday’s order.
He went on to say that DPHHS has acknowledged difficulty in enforcing the law with no rules in place, but that is insufficient to overcome the abortion providers’ claim of fear of enforcement. He said even though the state feels it cannot currently enforce the law, county attorneys could still attempt to do so since the law is on the books starting Sunday.
Abbott wrote that the providers had established an actual controversy in the suit, that a restraining order was in the public interest, and that the plaintiffs were likely to succeed in their argument that the section of the new law “violates the right to individual privacy in the absence of a means of obtaining a license.”
But he said further questions about whether the licensure requirement is otherwise unconstitutional would not be “confronted” until both sides present their arguments at the hearing on the preliminary injunction request next month.
Abbott wrote that unless the section of law is enjoined, the providers would be putting themselves at legal and financial risk by operating without a license.
“Abortion services are necessarily time-sensitive in nature, particularly as abortions become more invasive as the pregnancy continues,” he wrote. “A chill on abortion services because of legal uncertainty over the effect of HB 937 causes the clinics and their patients irreparable injury for preliminary injunction purposes.”
Abbott wrote that the TRO does not keep the department from beginning the rulemaking process nor limit the legislature’s policy goals because there are currently no rules in place. The Attorney General’s Office and DPHHS did not respond to a request for comment on Abbott’s order Wednesday afternoon.
Gleizer, with Blue Mountain Clinic, said the clinic and others in Montana have for decades been safely providing abortion care in Montana subject to government regulation and oversight. She sees the litany of abortion restrictions passed again this past session as an ongoing attack on women’s health care by the government.
“We have seen it for what it was from the beginning, which is a false narrative of safety,” she said. “When, as with other anti-abortion bills, it’s about control and ultimately banning abortion.”
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