Montana Court Enjoins Licensing Restrictions for Abortion Providers
- November 22, 2024
A Montana statute (HB 937) and implementing regulations that impose additional licensing restrictions on abortion providers likely violate the Montana Constitution and should be enjoined, a state trial court held November 15.
The Montana First Judicial District Court, Lewis and Clark County, granted a preliminary injunction to plaintiffs All Families Healthcare and Blue Mountain Clinic, which provide procedural abortions and medication abortions, including via telehealth, along with other reproductive health care.
HB 937, which was scheduled to take effect November 19 after the court’s existing temporary restraining order expires, requires the licensure and regulation of abortion clinics by the Montana Department of Public Health and Human Services (DPHHS), which also promulgated administrative rules implementing the statute.
The court found plaintiffs were likely to succeed on their claim that the statute and regulations unconstitutionally infringe on plaintiffs’ and patients’ right to equal protection of the laws.
Abortion is legal in Montana. The state supreme court has held that the right to “a pre-viability abortion[] from a health care provider of her choice” is included in broad privacy protections under the Montana Constitution. In October, the high court left in place preliminary injunctions of several other state abortion restrictions finding they likely violated the Montana Constitution’s fundamental right to privacy and to equal protection. Most recently, voters in the state approved a constitutional amendment guaranteeing an express right to abortion access.
HB 937 classifies “abortion clinics”—like plaintiffs—that provide medication abortions to five patients or more annually or perform any “surgical abortion procedures” in their offices as “health care facilities” subject to DPHHS baseline regulations and licensure requirements. “By contrast, private healthcare professionals who perform the exact same procedures and prescribe the exact same medications, but who do so for the purpose of managing spontaneous miscarriage instead of inducing abortion, are not subject to regulation or licensure” by DPHHS at all, the court noted.
And while patients “have access to the full panoply of providers qualified to perform these procedures if they are seeking care to manage a spontaneous miscarriage . . . the pool of available providers is now constricted to those facilities licensed as abortion clinics if the patients seek the exact same treatments, but for the purpose of inducing an abortion,” the court observed.
The court found this disparate treatment for seemingly similarly situated providers and patients would not survive strict scrutiny, which was the standard likely to apply under Montana Supreme Court precedent.
In the absence of a preliminary injunction, plaintiffs likely would have to cease operations, at least until they comply with the requirements or obtain a waiver from DPHHS.
HB 937 also was a departure from the decades long status quo in which abortion providers were subject to applicable federal regulation and regulation by their licensing boards, but generally not considered health care facilities under DPHHS regulation.
“[T]he harm occasioned by inflicting constitutional injury on Providers and their patients, who face likely disparate treatment, burdens not shared by other, similar, patients and providers, and the strong potential of imminent closure (at a minimum until regulatory compliance is achieved or agreement is reached on waivers) outweigh the government’s interest in effectuating a change to the status quo in the form of HB 937,” the court wrote.
All Families Health Care v. Montana, No. DDV-2023-592 (Mont. Dist. Ct. Nov. 15, 2024).