Judge blocks Montana’s abortion restrictions hours before deadline

A district court judge in Yellowstone County has temporarily blocked the state from enforcing three laws restricting abortions passed by the Legislature earlier this year, issuing a temporary restraining order in the highly politicized case.

Judge Michael Moses’ ruling came just before 6 p.m. Thursday, giving a short-term answer to a flurry of court filings from the state’s defense team and attorneys for Planned Parenthood of Montana, the latter of which was racing to stop the laws from going into effect at midnight.

In his decision, Moses said House Bills 136, 140 and 171 “may inflict constitutional injuries” on Montanans, leading him to rule in the interest of preserving the status quo until the case can be further evaluated. The laws, respectively, restrict abortions after 20 weeks of pregnancy, require providers to offer patients an ultrasound, and create layers of new restrictions for medication abortions earlier in pregnancy, including a ban on the distribution of that medication by mail. If enforced, the laws would require criminal and civil penalties for health care providers who do not comply. 

“Any constitutional injury would be irreparable,” Moses wrote. “The status quo can only be maintained if a Temporary Restraining Order is issued prior to October 1, 2021. Therefore, this Court enters its Temporary Restraining Order until it has had time to review the record.”

In a statement after the ruling, PPMT CEO Martha Stahl praised the decision while acknowledging that the case is far from resolved. “This is a critically important step in our fight for Montanans and their ability to continue accessing safe, legal abortion without interference from politicians, as guaranteed by the right to privacy under the Montana Constitution,” she said. “We are pleased the court agreed that these abortion restrictions should not go into effect until the court can give serious consideration to the weighty constitutional issues in this case.”

A spokesperson for the attorney general’s office declined to provide comment on the judge’s ruling.

The judge’s order is the culmination of an action-packed 24-hours in which judges were replaced and lawyers for both parties traded barbed accusations in court documents filed before district court and Supreme Court judges. 

The most recent motion from Planned Parenthood, filed at 3:11 p.m. Thursday, asked the district court to consider a preliminary injunction or a more limited temporary restraining order. The latter will now be in place for 10 days or until a preliminary injunction is issued. 

Moses’ ruling explained that he was assigned the case at exactly 1:11 p.m. on Thursday, and that the tight timeline made it impossible to decide whether to issue a preliminary injunction, noting the case’s “extreme constitutional importance.”

Moses took over the case after Yellowstone County District Court Judge Gregory Todd disqualified himself Thursday afternoon in response to the state attorney general’s office accusing him of displaying bias against the state during oral arguments last week. While the state’s motion was routed to the state Supreme Court for review, Todd disqualified himself before the higher court weighed in, causing Yellowstone County to reassign the case to Moses. 

Before the case changed hands, attorneys for PPMT sought relief Thursday morning from the Supreme Court, petitioning it to temporarily block the laws because of their statewide significance and what PPMT attorneys described as the “machinations” of the attorney general to slow court proceedings and allow the laws to take effect at midnight on Friday.

“Accordingly, absent emergency relief from this Court, the State will get its desired result — but through blatant gamesmanship, rather than any ruling on Petitioners’ motion,” PPMT attorney Raph Graybill wrote.

The state’s motion to disqualify Todd was filed at 4:37 p.m. Wednesday, shortly before the close of business hours, six days after the court appearance in which state attorneys said Todd showed bias. 

In an affidavit filed Thursday, state solicitor general David Dewhirst presented an affronted rebuttal, arguing that the Wednesday disqualification filing was made “in good faith” and was only delayed because the state waited to receive an expedited transcript of the court appearance in question. 

“Calling me a liar today and engaging in ad hominin [sic] attacks against the State may be what the Petitioners mistake for argument, but it is not,” Dewhirst wrote, suggesting PPMT attorneys could be sanctioned for their conduct.

In the state’s original motion against Todd, Dewhirst said the judge should recuse himself because of an apparent reference to the political fight between the Republican-led Legislature and the state judiciary, which spiralled out of lawmakers’ efforts to exert influence over the judicial branch during the recent legislative session. 

“In short, Judge Gregory Todd made statements … that demonstrate bias toward the State and the legitimacy of its regulatory powers at issue in this case,” Dewhirst said to the Supreme Court Thursday. “He did so by interjecting reference to a completely separate, ongoing legal and political dispute between the Legislature and Judiciary. This Court is well aware of the acrimonious nature of that dispute.”

Todd did not publicly issue an explanation of his decision to step down from the case. Early Thursday morning, however, he emailed parties to explain that a clerical error Wednesday evening had resulted in the case being temporarily reassigned to Judge Rod Souza, a filing that was later rescinded. After parties filed motions with the Supreme Court, Todd disqualified himself around 1 p.m., prompting the Supreme Court to dismiss the request.

When the case was picked back up by Yellowstone County, attorneys for PPMT re-filed its motion for a preliminary injunction and also added a motion for a temporary restraining order as another option for the court to consider. 

The three laws in question, attorneys wrote, “will immediately infringe on the fundamental rights of Montanans seeking abortion care and subject Plaintiffs to substantial criminal penalties for providing that constitutionally protected care.” If the court does not issue a preliminary injunction, the filing continued, “the Court should temporarily restrain the challenged laws until Plaintiffs’ motion for preliminary relief can be resolved.”

The restraining order option was the subject of sharp criticism by the attorney general’s office.

“After waiting months to file their lawsuit and failing at the state Supreme Court, the abortion industry is now desperately trying to overturn Montana law at the eleventh hour and deprive pregnant women and unborn children of these commonsense health protections,” wrote press secretary Emilee Cantrell.

The judge’s ruling, while prohibiting the state from enforcing or threatening to enforce the three bills for 10 days, does not include additional deadlines or scheduling for court appearances.