State court strikes down two abortion laws passed in '23
A Lewis and Clark County District Court judge has struck down two abortion bills passed into law in 2023 by the Montana Legislature and signed by Gov. Greg Gianforte, saying they violated the constitutional rights of women by subjecting those on Medicaid to onerous, unnecessary and possibly dangerous steps in order to receive an abortion.
Judge Mike Menahan leaned heavily on decades' worth of court decisions which covered very similar ground, but said requirements put into law in 2023, were unnecessary and treated women who were struggling financially differently just because they elect to have an abortion. The laws were nearly immediately halted by the courts.
Meanwhile, the state had argued that the Legislature had a legitimate interest in health and safety of women and infants, while also being allowed to choose what procedures the state covers through its government-supported healthcare programs.
House Bill 544 and House Bill 862 would have barred abortions by any other provider than a doctor, eliminating advanced care providers. It would would have required a pre-authorization approval, a physical examination, and 'extensive supporting documentation' including a provider having to justify why the procedure is 'medically necessary.' Some of that documentation included personal questions including how many pregnancies the woman had previously had — something not required of other patients, including other Medicaid recipients who chose to carry the pregnancy to term. HB 862 would have prohibited abortions for Medicaid patients unless the pregnancy was the result of rape or incest, or the mother was 'in danger of death.'
Menahan found once Montana agrees to running a medical assistance program, it can't then decide which medical procedures it condones.
'The relevant inquiry is not whether the right of privacy requires the state to fund abortions, but whether, having elected to participate in a medical assistance program, the state may selectively excluded from such benefits otherwise eligible persons solely because they constitutionally protected healthcare decisions with which the state disagrees,' the ruling said.
Menahan found that additional steps and burdens the new laws placed upon pregnant women were not justifiable. For example, requiring an in-person abortion, or requiring a physician, rather than an advanced-practice nurse or doctor's assistant, was not justified when medical research proves no basis that physicians are better at abortion procedures or in-person abortions lower the risk.
'The undisputed facts likewise establish that the prior authorization requirements in the rule and HB 544 do not address a medically acknowledged, bona fide health risk. The unrequited testimony establishes that the requirements would require patients to make an extra in-person visit to a healthcare provider for a physical examination,' Menahan wrote in his opinion. 'The physical examination would result in delays that harm patient health; and would in practice ban direct-to-patient medication abortions which have been done safely via telehealth for years without the need for any in-person visit.
'The state admits it has no evidence that medication abortions provided via telehealth are any less safe or effective than abortions provided in-person. Further, the state has failed to demonstrate that the requirements for prior authorization are narrowly tailored to effectuate any state interest.'
Menahan also drew on Montana's robust and still-growing case law when it came to HB 862, which would narrow when abortions could be an option for Medicaid patients, only allowing for it in cases of rape, incest or the woman's life is in danger. The court found that HB 862 was nearly identical to a case decided in 1995, Jeannnette R. vs. Ellery.
'Jeannnette R. declared unconstitutional a regulation that did the very same thing,' Menahan wrote. 'And the court has no reason before it to disturb the holding of that case.'
The groups which waged the legal fight against these laws, including Planned Parenthood of Montana, the Center for Reproductive Rights, the American Civil Liberties Union of Montana, Blue Mountain Clinic and All Families Healthcare, put out a joint statement after receiving the ruling on Tuesday afternoon:
'Every Montanan deserves the ability to access quality, timely healthcare, regardless of where they live or how much money they make. We are relieved that these dangerous restrictions have been struck down for good, and that patients will continue to have the access that these laws would have forbidden. The government has been relentless in their attempts to undermine healthcare without a thought for the consequences of for patients' health and lives. Montanans made their voices heard last year when they voted to further protect abortion rights, sending a clear message that politicians have no place in exam rooms. With this win, we will continue our fight to ensure everyone in Montana can make their own decisions about their own lives.'
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