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In March, the U.S. Supreme Court heard a case that could have implications for Montana women if a Republican wins the governor’s race.
Abortion-rights advocates and opponents both are waiting for the Supreme Court decision on June Medical Services, LLC v. Russo, which is expected soon.
The case is about a 2014 Louisiana law requiring abortion providers to have admitting privileges to a hospital within 30 miles of their clinic. If Louisiana wins, the case will likely reverberate across the country, including Montana.
The Center for Reproductive Rights, a legal advocacy group, sued Louisiana Department of Health and Hospital Interim Secretary Stephen Russo on behalf of abortion provider June Medical Services, LLC, the corporate name for Hope Clinic in Shreveport.
The Center for Reproductive Rights asked the court to take the case because the Louisiana law is identical to a 2013 Texas law the high court struck down four years ago.
Louisiana argued that the law is necessary to protect women’s health. But a 2015 policy statement, the American Public Health Association called admitting privileges laws for abortion “stringent, medically unnecessary laws” that “restrict the availability of abortion services and disproportionately decrease abortion access among women of color and rural and low-income women.”
Abortion-rights groups call Louisiana’s requirement a TRAP law, because it and others like it are “targeted regulations of abortion providers.” During the hearing on March 4, U.S. Supreme Court Justice Elena Kagan said Hope Clinic had reported having to admit just four women to a hospital out of about 70,000 abortions over 23 years. The court also noted during oral arguments that in order to gain admitting privileges, a doctor has to admit a certain number of patients each year. Thus, abortion providers “will never qualify [for admitting privileges] because their patients don’t go to the hospital,” Justice Ruth Bader Ginsburg said.
Abortion-rights groups argue the effect of such laws is to force abortion clinics to close. In the Louisiana case, the Center for Reproductive Rights argued that allowing the Louisiana law to stand would not make abortion safer, but would force two of the three clinics in the state to shutter. That would mean most women seeking abortions in Louisiana would have to drive hundreds of miles and endure increased wait times to visit one clinic serving the entire state.
According to the Guttmacher Institute, a reproductive policy organization, three other states — Alabama, Mississippi and Tennessee — successfully passed laws requiring abortion providers to obtain admitting privileges with nearby hospitals in recent years. Before courts overturned those laws in each state, clinics closed or were in danger of closing, one clinic was denied admitting privileges and women were forced to wait longer to obtain an abortion.
The case against Texas went to the Supreme Court four years ago. After Texas passed it, the number of abortion clinics in that state dropped from 41 to 22 before the high court ruled against the state in 2016. A study published by The Lancet Public Health found that after the Texas law went into effect, 44% of Texas women seeking abortion services had to travel more than 50 miles.
Martha Stahl, president and chief executive officer of Planned Parenthood of Montana and Planned Parenthood Advocates of Montana, said that if the court rules in favor of Louisiana, “We’ll see a ripple effect across states. As state legislatures convene, they’ll have free rein to pass these laws in other states,” she said.
Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, said if a Republican wins the state’s governor’s race, Montana is likely to face some type of new restrictions placed on abortion.
“It’s very likely Montana could try to pass more restrictions, especially if Montana elects a governor who is opposed to reproductive freedom,” and if, as most observers expect, Republicans maintain their long-held majorities in the Legislature, she said.
Nancy Northrup, president and chief executive officer for the Center for Reproductive Rights, said during an online media conference call earlier this week that states have passed 450 laws in the last decade restricting abortion access.
In the last four years especially, Northrup said, President Donald Trump has “emboldened” anti-abortion lawmakers. Trump’s appointments of U.S. Supreme Court justices Neil Gorsuch and Brett Kavanaugh are expected to provide the additional conservative votes needed to rule in favor of more restrictive laws and, potentially, to overturn Roe v. Wade.
If that happens, it will be up to individual states to protect abortion access, according to abortion-rights groups.
At least some congressional leaders hope to see Roe overturned when the court rules on June Medical Services, LLC v. Russo. In early 2020, 207 members of Congress — almost all Republicans, including Sen. Steve Daines and Congressman Greg Gianforte — signed a “friend of the court” document in support of the Louisiana law and advocated that the court also reconsider Roe v. Wade while it decides the case.
The Center for Reproductive Rights said there are multiple ways the court could rule. It could choose not to decide on the constitutionality of the Louisiana law and, instead, rule on whether the clinic and physicians who brought the case had the right to do so on behalf of their patients. Louisiana’s lawyer argued that having the clinic and physicians bring the case created a potential conflict of interest with patients.
A court ruling in favor of Louisiana on that question could have significant consequences. Most abortion-rights battles are brought by abortion clinics and health care providers, not by individual abortion patients, said Julie Rickelman, the center’s attorney.
Alternately, the court could strike down the Louisiana law as unconstitutional. That is the decision the Center for Reproductive Rights and abortion-rights activists are hoping for.
Another possibility is that the court strikes down the Louisiana law, but weakens the legal standard for abortion, making it “a right in theory and not in fact,” Rickelman said during the media briefing earlier this week.
An example is the 1992 Supreme Court ruling in Planned Parenthood v. Casey, which allowed states to pass laws that make it harder for women to obtain abortions, but don’t abolish abortion outright. The Supreme Court decided abortion would remain legal, but it also allowed most of the obstacles the state of Pennsylvania enacted in the late 1980s to remain in place. That ushered in the legal right for states to pass informed consent laws and parental consent laws.
“Roe was watered down in significant ways by the decision in 1992,” Borgmann said.
Would a weakened Roe v. Wade, or a decision that would disallow health care providers and clinics to sue on behalf of reproductive rights, impact Montana?
The state’s Constitution has enshrined a right to privacy, which has protected abortion services during court fights over regulations in the past, Stahl said.
Borgmann said the right to privacy in the state Constitution includes “the ability to make health care decisions for one’s self.”
But the state Constitution hasn’t entirely prevented Montana lawmakers from chipping away at reproductive rights. In 1995 the state passed a law that only physicians can perform abortions. The ACLU challenged that law and the state Supreme Court overturned it. In 2005 the Legislature tried again by restricting abortion provision to physicians and physician assistants. That remained the law until 2018, when a certified nurse and a certified nurse practitioner sued.
Borgmann said the state Supreme Court issued a preliminary injunction while the case is pending, and the two health care providers are currently able to perform abortions.
Borgmann said that if the state elects a majority of Republican legislators and a Republican governor, she anticipates additional restrictive laws to pass, and legal challenges to those laws.
While reproductive rights have not been at the forefront of 2020 gubernatorial campaign rhetoric, elections have a direct impact on Montanan’s health care options and outcomes.
For example, 2019’s House Bill 595 would have required health care plans to reimburse for 12-month contraceptive prescriptions. Stahl said Planned Parenthood had hoped it would pass.
“There is medical evidence that shows that people who get a whole year’s worth of contraception, and don’t have to go back each month, are way less likely to have an unintended pregnancy,” Stahl said.
Jon Ebelt, public information officer for the Montana Department of Health and Human Services, said Montana has seen a drop in the number of abortions after the Affordable Care Act increased access to birth control.
Between 2011 and 2017, the U.S. abortion rate (the number of abortions per 1,000 women aged 15–44) fell by 20%, from 16.9 in 2011 to 13.5 in 2017. In Montana, the abortion rate fell by 32% over the same period, he said in an email to Montana Free Press.
Abortion sorts Montana’s gubernatorial candidates along party lines. On the Democratic side, both businesswoman Whitney Williams and Lt. Gov. Mike Cooney support reproductive health care, including abortion.
On the Republican side, all three candidates have positioned themselves as strong opponents to abortion. Gianforte posted in January on his Congressman Greg Gianforte Facebook page that he was recommitting himself to “protecting the unborn.”
“Regardless of the hurdles we face — whether it’s states allowing infanticide or courts making anti-life laws from the bench — the fight for life must continue,” he wrote.
The Gianforte Family Charitable Trust has given $225,000 in recent years to groups that successfully advocated for gestational bans — so-called heartbeat bills that attempt to limit abortion, in some cases to as early as six weeks — in other states, according to a Sludge investigation last year. All of those laws led to legal challenges and are now awaiting court decisions.
An email to Gianforte’s campaign seeking comment went unreturned.
Olszewski has sponsored three anti-abortion bills in the Legislature over the last five years — one while he was a state representative, and two in his current position as state senator. Gov. Steve Bullock vetoed all three.
Senate Bill 354, the Montana Born-Alive Infant Protection Act from the 2019 Legislature, would have established criminal penalties for health care providers who failed to provide care to a live infant during an abortion. Bullock wrote in his veto that the bill sought to address a medical practice that does not exist.
Senate Bill 282, which Olszewski sponsored in the 2017 Legislature, tried to ban abortion of a fetus after viability. Bullock wrote in his veto response that the “sponsors of the bill attempt to circumvent Roe v. Wade by imposing an arbitrary ‘chance of survival standard.’”
When Olszewski was a member of the House in 2015, he sponsored HB 479, the Montana Unborn Child Pain and Suffering Prevention Act, which would have criminalize doctors by establishing that they had to provide anesthesia to a fetus during an abortion beyond 20 weeks. Bullock wrote in his veto that the bill was one of a “series of extreme bills that prioritizes political ideology over sound healthcare policy.”
When Fox spoke with Montana Free Press editor-in-chief John S. Adams on the Montana Lowdown podcast, in February, he defined himself as “pro-life,” but qualified that by adding that he is “thoughtful” about the issue. Asked if he would sign a bill as governor that might restrict abortion access, Fox declined to speculate.
“I’m not going to say I’m going to sign a bill I haven’t even seen,” Fox said.
Fox did sign on in 2019, along with 18 other states, to support a North Carolina lawsuit that defends the right of states to ban abortion after 20 weeks, citing fetal pain, an argument popular on the conservative right, which often claims a growing body of scientific evidence that abortion after 20 weeks causes pain to the fetus. But while there does appear to be some discussion among scientists about fetal pain, the Guttmacher Institute, citing the American College of Obstetricians and Gynecologists, says fetuses can’t feel pain before viability, which is generally not reached until after 24 weeks.
Earlier this year the nonpartisan think tank Pew Research Center analyzed 2014 opinion data and that found that 56% of Montanans think abortion should be legal in all or most cases, and 38% of state residents said it should be illegal in all or most cases.
Olszewski and Fox’s campaigns did not respond to interview requests.
The Guttmacher Institute estimates that nearly one in four women gets an abortion.
But regulations restricting access to abortion tend to impact already vulnerable populations the most. About 75% of abortion patients in 2014 reported as poor or low-income, according to the Guttmacher Institute.
In a state like Montana, where driving long distances is a fact of life, women who need an abortion often have to factor in hundreds of miles of travel. Clinics that provide abortion exist in Whitefish and in most of Montana’s major cities except Bozeman and Butte. There is not a single abortion clinic east of Billings, Stahl said.
“Travel is huge,” Stahl said of the difficulties facing abortion patients. “They have to think about things like taking time off from work and childcare as well as thinking about what they’ll need to travel.”
If an admitting privilege law were passed in Montana, the potential closure of clinics could add to the travel burden.
Because of the Hyde Amendment, which has prohibited the expenditure of federal dollars on abortion care since about 1980, Native American women cannot get an abortion on reservations via Indian Health Services. Native women must leave their reservation to seek an abortion at clinics elsewhere. The Hyde Amendment also restricts Medicaid from paying for abortion care in most states, and did so in Montana until a 1995 legal challenge led to change. Now Medicaid in Montana pays for abortion through the general fund, Ebelt said.
For women who lack Medicaid or other insurance coverage, the cost of an abortion varies depending on how early in pregnancy it takes place, and if a woman can’t gather funds and is forced to wait while she does, the cost can rise to several thousand dollars if she is past 12 weeks.
Abortion-rights advocates say something else happens when state governments pass restrictive laws on abortion. Such laws usually end up in court, which can cause confusion for patients about whether regulations under legal scrutiny are being enforced or not. Court battles and new restrictions can also add kerosene to an environment already hostile to abortion patients and providers. Stahl cited the example of the firebombing of a Flathead Valley abortion clinic in 1994. Ten years later, an abortion clinic in Kalispell lost its lease after an anti-abortion group bought the building. A vandal with ties to the group then broke into the newly relocated clinic and vandalized it, which forced the clinic to close temporarily.
“The emotional impact of the stigma that exists around abortion — it’s very hard to hear the kinds of conversations that go on when legislators are debating these kinds of bills. The assumptions [legislators] make about what kind of people [patients] are — we heard that in the last legislative session,” she said.
Stahl said communities of color, women who face “insurmountable poverty” and the LGBTQ community “are already marginalized in other ways. They tend to be more impacted by these kinds of laws.”
“They’re already vulnerable,” she said.