Judge Hears Arguments Over Whether New Abortion Clinic Regulations Should Remain Blocked
Plaintiffs say clinics could close if restraining order expires Nov. 19
By Blair Miller for the Daily Montanan
A district court judge in Helena heard arguments Friday over whether he should continue to block a bill passed by the Legislature in the 2023 session, and subsequent rules created by the Department of Health and Human Services, that would require abortion clinics be licensed in order to operate in Montana.
Lewis and Clark County District Court Judge Christopher Abbott told lawyers with the state, the American Civil Liberties Union of Montana and Center for Reproductive Rights he would issue a decision likely by the end of next week determining whether the extra licensure requirements will remain blocked. Otherwise, the court order he issued in September 2023 will expire on November 19.
Should Abbott decide not to issue a preliminary injunction continuing to block the bill and the rules finalized earlier this year from taking effect, it’s possible that clinics like All Families Health Care and Blue Mountain Clinic – two Montana abortion providers that are plaintiffs in the case – could have to close even though they have sought waivers from the rules to continue operating, attorneys told Abbott during Friday’s hearing.
“We have no obligation to try to comply with the law we are arguing is unconstitutional. It is the state’s burden to demonstrate why that law is necessary,” Hillary Schneller, a Center for Reproductive Rights attorney representing the plaintiffs, told the court.
When Abbott issued a temporary restraining order enjoining the portion of 2023’s House Bill 937 that said, “a person may not operate or advertise the operation of an abortion clinic unless the person is licensed by the department,” DPHHS had not yet begun the rulemaking process despite the law being slated to take effect just days later.
At the time, he said the bill’s language “plainly and unambiguously” prohibited abortion clinics from operating without a license, which was not previously required for the clinics, though their providers are licensed by the state.
But he said last year the law could not go into effect until rules were made and that prior court precedents in Armstrong and Weems, two Montana Supreme Court cases that affirmed the right to abortion under the right to privacy in the state constitution, made it dubious whether the law was constitutional anyhow.
“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 license,” Abbott wrote last September.
But he had declined to predict whether the bill would be found unconstitutional, allowing DPHHS to promulgate the rules in order to follow the Legislature’s mandate.
The department completed the rules this summer, which the plaintiffs say include several additional requirements not placed on other types of licensed clinics, including clinics that assist with miscarriages. Those include requiring that the applicant is “of reputable and responsible character,” a requirement to keep staff background checks on file for random inspection, “born alive” language, additional testing requirements, construction requirements, and a $450 annual license fee, among others. Some of the language was taken from rules for outpatient surgical centers, a DPHHS employee testified, including a rule regarding anesthesia.
The plaintiffs, which also include Helen Weems, an advanced practice registered nurse at All Families Health Care, argue that the additional licensure requirements infringe on Montanans’ right to abortion and right to privacy and violate the equal protection clause of the state constitution because they impose additional requirements not necessary for other medical clinics.
The plaintiffs asked the state for waivers for some of the rules on October 1, but the department has not responded. Assistant Attorney General Thane Johnson, representing the state, told the court Friday the department had not responded since Friday’s hearing was scheduled after the plaintiffs filed an amended complaint in October, and suggested it could be resolved there.
Tara Wooten, the bureau chief of the DPHHS Licensure Bureau, was the lone witness called by either party during Friday’s hearing. Johnson and Alex Rate, an attorney with the ACLU of Montana, both asked her questions about the rules and rulemaking process.
She explained that the bureau had followed the lead of similar abortion clinic licensing requirements in Mississippi, where abortion is banned except to save the life of the mother or in cases of rape or incest.
“That law has contributed to there being one abortion clinic in Mississippi, and now abortion is completely prohibited in Mississippi,” Schneller later told the court. “But I’ll just note the department choosing to base this regulation on a state that singles out abortion … only further demonstrates that these regulations are singling out abortion and treating it differently.”
Schneller told Abbott that the Montana Supreme Court had on four occasions during the past year affirmed the right to abortion under Armstrong and Weems, and found any abortion restrictions were subject to the highest level of court scrutiny.
“The state has made no effort to defend HB 937 or the rules under strict scrutiny, and it can’t. The overwhelming medical consensus makes clear that abortion can and is being provided in offices spaces like plaintiffs’ clinics, and again, are subject to pre-existing regulation,” she said, adding that the Kansas Supreme Court and U.S. Supreme Court had recently come to identical conclusions.
Further, she said the rules violated existing injunctions in Montana that allow nurse practitioners to perform abortions and uphold tele-health requirements in a large and rural state.
Johnson, representing the state, conceded that the rules were “a moving target” and might need to change, but said that DPHHS was drafting rules simply to follow the Legislature’s will when it passed HB 937, sponsored by Representative Lola Sheldon-Galloway, R-Great Falls.
He said he understood there were several types of abortions performed at various clinics and that the two plaintiff clinics only perform certain types. He said that was what the waiver process was intended for, while the full rule was aiming to cover all types of abortions.
Abbott told Johnson that with just 11 days before the restraining order is set to expire, there is a chance the clinics would have to close if they are still “bickering” with the department over the waivers they had asked for. He said that process was “problematic” because there was a lack of specificity in the waiver language and it could lead to the clinics being shut down. And he said he believed the plaintiffs would likely face irreparable harm if they were forced to close.
Johnson conceded that DPHHS “isn’t an expert in abortion yet” and suggested Abbott consider severing some portions of the rule when he makes his decision – upholding some parts of it while enjoining others. He suggested the two sides could perhaps come to some sort of agreement on the waivers without the judge enjoining the bill and rules entirely.
“That’s very optimistic,” Abbott responded.
Abbott also brought up Constitutional Initiative 128, the measure that will enshrine abortion protections in Montana’s constitution, which was passed this week by 58% of voters. It takes effect on July 1, 2025. Johnson said he believed that the measure’s passage wouldn’t prohibit the state from regulating health and safety at abortion clinics. That would lead to “absurd results,” he told the court.
Schneller went back to the equal protection argument to close out the hearing, saying the rules would allow Blue Mountain Clinic to provide miscarriage care anytime in a pregnancy that involves the same type of care as abortions, but would not be subject to the same regulations as it would when performing abortions.
She pointed out that while the two sides were now arguing about waivers less than two weeks before the restraining order was set to expire, it took the department more than a year to write and finalize the rules, then DPHHS failed to respond to the waiver requests for more than a month.
“In this case, we have provided significant evidence of the irreparable harm that will accrue to our clients’ practices as well as their patients,” she said. “And finally, I would note that a preliminary injunction here would merely maintain the status quo of the regulation that plaintiffs have been under for decades in Montana.”
Abbott committed to having an order out on the matter before the prior order expires on November 19.
“One way or another, I’m going to get a decision out by then,” he said. “So, I think I’ll probably have something for you late next week.”
Republicans are doing everything they can to undermine our freedoms and the very obvious will of the voters of Montana.