Montana Supreme Court Says Abortion Restrictions Should Remain Enjoined While Challenges Proceed
- October 11, 2024
The Montana Supreme Court left in place preliminary injunctions of several state abortion restrictions after agreeing with the lower court that the laws at issue likely violated the Montana Constitution’s fundamental right to privacy and to equal protection.
At issue were four statues enacted by the Montana legislature in 2023:
- HB 721, which criminalizes, except in medical emergencies, dilation and evacuation (D&E) abortions, the only abortion procedure available in an outpatient setting after 15 weeks past a patient’s last menstrual period;
- HB 575, which requires a patient to obtain, and an abortion provider to review, an ultrasound prior to an abortion, essentially preventing medication abortions via direct-to-patient telehealth without an in-person visit;
- HB 544, which bars Medicaid from covering abortion services provided by most non-physicians and only allows coverage in limited circumstances; and
- HB 862, which prohibits the use of public funds for abortion services unless the pregnancy is “the result of an act of rape or incest” or would place the patient “in danger of death[.]”
Planned Parenthood of Montana and several providers challenged the restrictions in two separate lawsuits. In May 2023, the district court temporarily enjoined the state from enforcing the restrictions while the lawsuits played out. The Montana Supreme Court upheld the preliminary injunctions.
As a threshold matter, the high court found plaintiffs had standing to challenge the restrictions, declining to overturn “decades of our own precedent” that “health care providers have standing to assert on behalf of their women patients the individual privacy rights under Montana’s Constitution of such women to obtain a pre-viability abortion from a health care provider of their choosing.”
The high court also found the providers were likely to succeed on their argument that the restrictions violated the right to privacy under the Montana Constitution. The state argued that post-Dobbs the court should apply rational basis review, but the high court disagreed. While Dobbs v. Jackson Women’s Health Organization, 142 S. Ct 2228 (2022), held that “rational-basis review is the appropriate standard for” challenges brought under the U.S. Constitution to state abortion regulations, the instant challenges were brought under the Montana Constitution, which includes an explicit right to privacy, the high court noted.
“At this stage in the litigation,” the high court said, the state “has not clearly and convincingly demonstrated” that the challenged restrictions are “narrowly tailored to effectuate a compelling interest—‘a medically acknowledged, [bona fide] health risk.’”
The high court also found plaintiffs were likely to succeed on their claim that the Medicaid funding restrictions violated equal protection under the state constitution.
“[W]e 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 high court said.
Planned Parenthood of Mont. v. Montana, No. DA 23-0287 (Mont. Oct. 9, 2024); Planned Parenthood of Mont. v. Montana, No. DA 23-0288 (Mont. Oct. 9, 2024).