Credit: Eliza Wiley / MTFP

A lawsuit filed Monday in Yellowstone District Court by Planned Parenthood of Montana challenges the constitutionality of four laws curbing access to abortion passed by the state Legislature and signed by the governor earlier this year.  

Together, they are the most sweeping attempts to restrict abortion and patient access seen in Montana in decades. Monday’s lawsuit seeks to block three of the laws before their Oct. 1 effective date and primes the state for a legal battle that challenges the foundational Armstrong v. State opinion decided by the Montana State Supreme Court in 1999.

At issue are four bills that mostly sailed through the Republican-held Legislature this winter and spring: HB 136 largely bans abortions after 20 weeks; HB 140 requires providers to offer patients an ultrasound before their procedure; HB 171 adds new restrictions on abortions early in pregnancy and prohibits the use of telemedicine and mail-delivered abortion medication; and HB 299 prohibits state health insurance plans sold through the federal exhange from including abortion coverage. 

In a celebratory bill signing for the first three pieces of legislation, Gov. Greg Gianforte heralded lawmakers’ efforts to “champion the unborn” and “advance the cause of life,” referencing 16 years of Democratic governors vetoing similar legislative efforts.

“I’ve been referring to this as sort of ‘the squeeze,’ because we have two laws that squeeze access to abortion early in pregnancy and then later in pregnancy.” 

Planned Parenthood of Montana President and CEO Martha Stahl

In the complaint, lawyers representing Planned Parenthood of Montana argue that all four laws violate Montana’s right to privacy as it applies to personal medical decisions, and have a combined effect that is “particularly cruel and prohibitive” for patients seeking abortions in a rural state where the number of providers is already limited.

“These laws are nothing more than poorly disguised attempts to chip away at Montanans’ access to safe and constitutional abortion. They will reduce the number and geographic distribution of locations in Montana where women can access safe and effective abortion care,” the filing states. 

The plaintiffs also argue that provisions of the laws put providers in an impossible bind by instructing them to provide inaccurate and stigmatizing information to their patients, even against their own medical judgment and expertise, in an effort to comply with what the lawsuit describes as “unconstitutionally vague prohibitions and requirements.”

In a separate filing requesting a preliminary injunction against House Bills 136, 140 and 171, the plaintiff’s attorneys said the policies would harm patients’ right to exercise medical autonomy. 

“Working together, the laws take aim at the full scope of abortion care the Montana Constitution guarantees — creating obstacles that operate to push women seeking abortion later into pregnancy and then cutting off access to abortion at an earlier gestational age,” the filing says. 

‘A CHILLING EFFECT’

The bills challenged in Monday’s lawsuit apply to abortions that may occur at the beginning, middle or end of pregnancy, creating what Planned Parenthood of Montana President and CEO Martha Stahl described in an interview as a “a chilling effect on access to abortion.”

“I’ve been referring to this as sort of ‘the squeeze,’ because we have two laws that squeeze access to abortion early in pregnancy and then later in pregnancy,” Stahl said. “They also work with the other two laws that talk about creating obstacles, basically, to getting care, whether that’s through the ability to use insurance or having to go to more appointments.” 

If enacted, Stahl said, the laws would add a series of hurdles for Montanans seeking and providing abortions with the goal of limiting those procedures overall.

“These bills all came from the same Legislature and all have the same intent,” she said. “And I think actually they work together to do that.”

While each law is disputed in distinct sections of the lawsuit, the bulk of Monday’s 56-page filing is dedicated to the plaintiff’s opposition to HB 171. 

That law prohibits telemedicine consultations for medication abortions and bans the mailing of such medicine to patients who wish to induce an abortion during the first 10 weeks of pregnancy. During the fiscal year spanning 2020 and 2021, the lawsuit says, 715 Planned Parenthood patients used telemedicine services in the process of ending an early pregnancy, the bulk of whom took the medication in a clinical setting after using videoconferencing to consult with a provider at another location in the state.  

“I don’t even think of it really as an anti-abortion bill. This is a bill that protects women.”

HB 171 sponsor Rep. Sharon Greef, R-Florence

The new policy requires patients to appear for multiple in-person appointments, with a mandatory 24-hour waiting period in between, before they can obtain the medication that induces an abortion up to 11 weeks of pregnancy. 

Stahl said those parts of the law would dramatically infringe on rural patients’ ability to access abortions, requiring them to travel an average of nine hours by car to go back and forth to a provider over multiple days. 

The law also adds new documentation and reporting requirements for providers. Among other provisions, patients will need to disclose their age, race, county of residence and any previous history of pregnancy, births and abortions. Their provider is then required to submit the forms to the Department of Public Health and Human Services, along with the provider’s name. The documentation would be subject to public records laws.

Additionally, providers are required to obtain informed consent from patients through compliance with a list of requirements including sharing a list of possible medical risks and complications related to medications used to induce abortions, many of which Planned Parenthood argues are false and amount to “biased counseling” that is contrary to medical ethics.

“The biased counseling provisions also attempt to scare women out of having [a medical abortion], and are counter to true informed consent, in that they require providers to give patients false and medically unsupported information,” the lawsuit says.

‘WE’RE DOING THIS FOR A REASON’

Republican lawmakers who sponsored the bills challenged in the Planned Parenthood lawsuit cited a wide variety of reasons for advancing anti-abortion legislation. 

Rep. Sharon Greef, R-Florence, sponsored HB 171, which she has said will help protect women from medical risks associated from what she calls “chemical abortions.” By being required to see a provider in person and take the medication under supervision, as opposed to consulting via video conference and taking the medication at home, Greef said, women may also be protected from abusive partners or sex traffickers who are forcing them to terminate a pregnancy.

“I don’t even think of it really as an anti-abortion bill,” Greef said in a phone interview after the lawsuit was filed. “This is a bill that protects women.”

“The rights to privacy to obtain safe health care, to have equal protection under the laws, are fundamental constitutional rights. And the Constitution exists to protect the individual citizens of Montana from the excesses of the Legislature. And that is exactly what this case is about.”

Planned Parenthood of Montana attorney Raph Graybill

Asked about the lawsuit’s allegation that HB 171 disadvantages women in rural areas who have to drive to find an abortion provider, Greef acknowledged the geographic hurdle.

“Yeah, it does,” she said. “But we’re doing this for a reason. We want to make sure that the woman is checked ahead of time” to run blood tests and ensure the person is still early in their pregnancy to avoid “tremendously dangerous” complications, she explained.

Like surgical abortions later in pregnancy, medication abortions have been repeatedly found to have a low rate of serious medical complications. In a year’s worth of data analyzed in a 2015 study, less than 1% of patients who had an abortion went to the emergency room for an abortion-related issue within six weeks of the termination of their pregnancy. Of the patients who had a medication abortion, even fewer, only 0.31% had a major complication from the procedure. 

Greef, who had not yet reviewed the lawsuit, disputed the idea that the four laws being challenged represent a coordinated legal strategy to limit abortions in Montana.

“I don’t think I can speak for the Legislature as a whole. We’re 150 individual people,” she said. “I do believe that anybody that believes in the sanctity of human life looks at any one of these bills and sees the merits.”

“We’ve been fighting for a long time to save the innocent lives that have been taken,” Greef continued. “I don’t see it as ‘the legislative intent’ at all. It’s more personal than that.”

CHALLENGING ARMSTRONG

In the 1999 decision protecting abortion access in Montana, the state Supreme Court found that the personal motivations of legislators who morally oppose abortions are essentially irrelevant compared to the right to privacy guaranteed in the state Constitution.

In Armstrong v. State, the court found that “the legislature has neither a legitimate presence nor voice in the patient/health care provider relationship superior to the patient’s right of personal autonomy.” 

The ruling rebuffed the Legislature’s decision to insert government into the “protected zone of individual privacy” solely because of “prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values.” 

Regarding a person’s procreative medical choices, the court said, “the state’s infringement of personal autonomy is not only constitutionally impermissible, it is, as well, intellectually and morally indefensible.”

In the legal landscape shaped by Armstrong, lawyers representing Planned Parenthood of Montana see the laws challenged Monday as being squarely unconstitutional.

“The rights to privacy to obtain safe health care, to have equal protection under the laws, are fundamental constitutional rights,” said the plaintiff’s attorney, Raph Graybill. “And the Constitution exists to protect the individual citizens of Montana from the excesses of the Legislature. And that is exactly what this case is about.”

But the protections afforded by the Armstrong case do not isolate the state from the turbulent legal battles over abortion unfolding across the country. 

The Washington, D.C.-based Susan B. Anthony List, which organized supportive testimony for the Montana bills during the legislative session, slammed the lawsuit in a Monday press release. 

“The radical abortion lobby led by Planned Parenthood is losing Americans’ hearts and minds, so they continually run to the courts to thwart the will of the people,” said Sue Liebel, state policy director for the group, in part of a longer statement. 

 “I look forward to defending these clearly valid statutes and to protecting the lives of the unborn.”

Attorney General Austin Knudsen

“Montanans and most Americans are eager to humanize our laws. With Gov. Greg Gianforte at the helm, Montana lawmakers are leading the way in enacting compassionate protections for unborn babies and mothers that reflect science, popular consensus and international norms,” the statement said.

While Planned Parenthood of Montana filed its challenge in the state court system, Liebel and Stahl both discussed the case in light of national trends, as more and more states pass anti-abortion laws and the U.S. Supreme Court prepares to hear one such dispute from Mississippi, Dobbs v. Jackson Women’s Health Organization, which will consider whether broad bans on abortions before 24 weeks are unconstitutional.

The [U.S.] Supreme Court is getting ready to hear its first abortion case … with the new composition of the court,” Stahl said. “And so the importance of maintaining access in places like Montana, where [abortion] is more strongly protected than federally, is important not just to folks in Montana, but it’s important to people in surrounding states as well.”

If Planned Parenthood of Montana’s lawsuit is successful, there is the eventual possibility that Montana’s attorney general could appeal the case to the U.S. Supreme Court to reverse the state’s protections. 

In response to Monday’s lawsuit, Republican Attorney General Austin Knudsen expressed enthusiasm about the upcoming court fight. 

“Montana voters overwhelmingly rejected Planned Parenthood’s, Raph Graybill’s and the Democrats’ extreme pro-abortion positions,” said Knudsen, who won his race for attorney general against Graybill in November. “I look forward to defending these clearly valid statutes and to protecting the lives of the unborn.”

The case has been assigned to Yellowstone District Court Judge Jessica Fehr. No court appearances have yet been scheduled. 

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Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.