Attorneys for the state of Montana and Planned Parenthood of Montana present arguments before Yellowstone County District Court Judge Gregory Todd on Thursday, Sept. 23, 2021. Credit: Mara Silvers / MTFP

BILLINGS — A Yellowstone County District Court judge is considering whether to temporarily block three state laws that add new restrictions to abortions at various stages of pregnancy following Thursday’s oral arguments in the case brought in August by Planned Parenthood of Montana.

Attorneys representing the plaintiffs told Judge Gregory Todd the bills passed by the Legislature this year would bring “significant, real-world consequences” to abortion providers and patients if allowed to take effect on Oct. 1, and should be blocked until the court can rule on the merits of the case.

Counsel from the state attorney general’s office argued against delaying the bills’ effective date, disputed that the legislation would bring actual harm to providers or patients, and urged the court to further investigate those claims before issuing a preliminary injunction.

“It is simply not enough to conclude superficially that if their allegations are all 100% true, legally correct, that they’re entitled to a preliminary injunction,” said Solicitor General David Dewhirst. “That can’t be right.”

If allowed to go into effect, the cumulative impact of the bills could dramatically change the landscape of abortion access in Montana, which has been legally affirmed in state court rulings since 1999. Attorneys for both sides acknowledged Thursday that the judge’s immediate decision will be only the first step in a long and hard-fought case.

House Bills 136, 140 and 171 would, respectively, bar most women from accessing abortions after 20 weeks of pregnancy, require providers to offer a patient an ultrasound before a procedure, and prohibit a person from using telemedicine to access medication abortions within the first 10 weeks of pregnancy. 

Various provisions in the laws would also require providers to collect new documentation from patients and share specific medical disclosures about abortions, information that would then be collected by the state. If providers are found to be out of compliance, the laws say they can be charged with various criminal and civil penalties, including felonies and prison time.

In court filings and Thursday arguments, attorneys for Planned Parenthood of Montana cited decades of case precedent in Montana that has determined abortion access to be a protected medical decision under the state Constitution’s right to privacy. Those rulings, the lawyers said, make it clear that the state must define a compelling state interest to infringe on that right.

That legal test “requires the state to demonstrate that these laws are necessary to preserve the safety, health and welfare of a particular class of patients or the general public from a medically acknowledged, bona fide health risk,” said plaintiffs attorney Michelle Diamond. “None of the laws here survive strict scrutiny.”

Dewhirst, arguing for the state, said the bills are reasonable regulations that will result in higher safety standards for women seeking abortions in Montana. In the case of HB 136, Dewhirst said, the Legislature was also protecting fetuses from pain, a claim debated by medical professionals.

“It is the unborn, pain-capable human beings that are the particular class the Legislature seeks to protect in HB 136,” Dewhirst said.

In other arguments, Dewhirst likened the regulation of abortion to government restrictions on firearms. Even if the laws in question put limits on abortion providers, Dewhirst said, enacting those limits is within the Legislature’s purview.

“We don’t prevent the state from regulating firearms simply because it may cause Springfield [Armory] or Glock to alter their operations in some way,” he said, referencing gun manufacturers. “States may regulate abortion providers to enhance the standard of care, even though it may cause Planned Parenthood to adjust its operations.”

Attorneys for Planned Parenthood countered that the new laws do much more than add reasonable regulations on medical care. In addition to exposing abortion providers to wide-ranging lawsuits, attorneys said, the policies will enact burdensome restrictions on patients, including those who would have to drive several hours to access a medication abortion in person if HB 171 were to go into effect. Counsel said that bill, as well as HB 140, also intrude upon a provider’s free speech rights by requiring providers to share specific information even if they do not deem it medically accurate or necessary.

Judge Todd addressed several questions to both teams of attorneys, particularly probing the state’s arguments about how the laws would serve the public interest.  

Todd, who has announced his retirement at the end of the year, also asked counsel to lay out their likely next steps in the case depending on how he rules on the preliminary injunction. Both legal teams said they would work to resolve the case as quickly as possible, but expressed a likelihood of appealing any decision that is not in their favor. 

Todd told the parties he would rule on the preliminary injunction before the laws’ effective date of Friday, Oct. 1.

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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.