Montana Supreme Court temporarily blocks abortion restrictions

By Keila Szpaller for the Daily Montanan

The Montana Supreme Court said Wednesday a lower court didn’t abuse its discretion in temporarily stopping bills that restrict abortion procedures and ones that restrict access to abortion by patients who use Medicaid.

In two separate opinions about companion lawsuits, the state Supreme Court agreed the preliminary injunctions can stay in place until a final decision is made in Lewis and Clark County District Court.

One pair of bills is related to abortions funded by Medicaid, House Bills 544 and 862, passed in 2023. Also in question is a Department of Public Health and Human Services rule related to Medicaid.

Another pair of bills — passed in 2023 — would have set up other restrictions; House Bill 575 would have required ultrasounds prior to abortion, and House Bill 721 would have prevented a common procedure starting at roughly 15 weeks, dilation and evacuation abortions.

In May 2023, the Lewis and County District Court temporarily barred all of the bills from taking effect until a final decision from the court. Wednesday, the Montana Supreme Court affirmed the lower court’s decisions.

In a statement, plaintiffs Planned Parenthood of Montana, Center for Reproductive Rights, ACLU of Montana, Blue Mountain Clinic, and All Families Healthcare praised the court opinions.

“We are relieved that these medically unnecessary restrictions will not be a barrier for Montanans trying to access reproductive health care,” said the parties; they are plaintiffs in the bills related to Medicaid funding, and Planned Parenthood and a doctor are plaintiffs in the other lawsuit. “We have been fighting back against countless attempts to restrict access in Montana that have only caused confusion for patients.

“Politicians have no place in exam rooms and we are determined to defend Montanans’ right to privacy – we trust patients to make their own decisions about their own lives.”

Justice Ingrid Gustafson delivered both opinions. Justice Jim Rice agreed with the preliminary injunction on HB 721 and dissented in the others.

In one dissent, Rice argued the bills related to Medicaid should stand because the legislature has the power to appropriate money, and those bills represent that authority. He said the legislation must be presumed to be constitutional.

“At center in this case is the Legislature’s power of the purse, including both the power to appropriate public funding and to set the conditions upon which the funds can be appropriated, that is, to adopt regulations for such funding,” Rice wrote.

In a statement, Governor Greg Gianforte, not party to the lawsuit, said the state Supreme Court got it wrong and pointed to Rice’s conclusion as appropriate.

Gianforte is a Republican who has signed numerous bills restricting abortion, including the ones in these lawsuits.

“I believe all life is precious and must be protected,” Gianforte said in a statement. “I am deeply disappointed in the Court’s ruling. Justice Rice is right in his dissent: The Court ignored its own precedent, and there is no constitutional right to public funding of a private choice.”

The lawsuits were filed against the state of Montana, Department of Public Health and Human Services and its director, Charlie Brereton; Attorney General Austin Knudsen also was sued in the case over abortion procedures.

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The majority opinions found the District Court properly accounted for the new, stricter standards for granting a preliminary injunction, contrary to the state’s argument.

However, one opinion from the state Supreme Court also said the state was essentially arguing that the justices ignore their own precedent in Armstrong vs. State of Montana — which the high court refused to do.

In Armstrong, the Supreme Court found the Montana Constitution’s protection of privacy included medical privacy and the right to an abortion. The opinion also noted Montana “adheres to one of the most stringent” privacy protections in the nation, even more protective than the federal constitution.

“We decline the State’s invitation to overturn decades of our own precedent and reaffirm, once again, that we ‘have little trouble concluding . . . that [Providers] have standing to bring their complaint’ challenging the laws at issue here because they ‘impact … the constitutional rights of women patients’ under the Montana Constitution’s guarantee of privacy and are ‘directed at health care providers.'”

In the lawsuit over the bills that would restrict Medicaid-funded abortions, the opinion said it disagreed with the state’s argument the provisions are simply “funding judgments.”

HB 544 would bar Medicaid from covering abortion services provided by anyone other than a physician and requires prior authorization, among other requirements.

HB 862 prohibits the use of public funds for abortion unless the pregnancy is from rape or incest or places the patient in danger of death.

“They implicate the constitutional rights of Medicaid-eligible Montanans,” the opinion said. “The court noted the First Judicial District Court’s ruling that the state may not inject coercive financial incentives favoring childbirth into a decision which is constitutionally guaranteed to be free from governmental intrusion.”

The opinion about the bills related to Medicaid also said the state can’t put women who use Medicaid in harm’s way by preventing them from accessing needed care.

“We hold that the state may not jeopardize the health and privacy of poor women by excluding medically necessary abortions from a system providing all other medically necessary care for the indigent.”

The opinion in the lawsuit over House Bills 575 and 721 also disagreed with the state’s arguments.

HB 575 would have required ultrasounds prior to abortion, but ultrasounds need to take place in person, and most abortions take place “safely and effectively” via medication and telehealth up to 11 weeks, the opinion said.

HB 721 would have prevented dilation and evacuation abortions, which the district court found were safer than the state’s alternatives, said the opinion, citing the lower court’s finding.

“Rather than preventing risk, the evidence of record thus far demonstrates HB 721 unnecessarily adds risk to a patient seeking a pre-viability abortion and infringes on the right to privacy guaranteed by the Montana Constitution,” the opinion said.

Opinion and Justices

Justice Ingrid Gustafson wrote both opinions for the Montana Supreme Court.

The opinion in the lawsuit over HB 721 and HB 575 was affirmed by Justices Laurie McKinnon, James Shea and Beth Baker. Justice Jim Rice agreed with the majority’s decision about HB 721 but dissented on HB 575.

In the opinion about the Medicaid bills, Justices McKinnon and Dirk Sandefur separately concurred.

Justice Beth Baker also delivered a separate concurring opinion, with which Justice Shea agreed; Baker agreed with the opinion affirming the preliminary injunctions but said it strayed beyond what was needed for a narrow decision.

Rice dissented.