Montana Supreme Court says abortion laws will remain blocked while case proceeds

In a five-justice panel’s unanimous decision, the Montana Supreme Court on Tuesday upheld a district court decision to block three abortion restriction laws from taking effect while the case proceeds. The high court said the case between Planned Parenthood of Montana and the state of Montana, defended by Attorney General Austin Knudsen, can continue in the Yellowstone County district court where it began.

The 33-page opinion was written by Justice Beth Baker and signed by Justices James Shea, Laurie McKinnon, Dirk Sandefur and Jim Rice. 

The case debates the constitutionality of three laws signed by Gov. Greg Gianforte last April. House Bill 136 prohibits abortions after 20 weeks gestational age. House Bill 140 requires providers to offer patients an ultrasound before an abortion. HB 171 adds numerous requirements to medication abortions, including that providers report specific demographic information about patients to the state’s public health department. That law also bans the use of telehealth appointments and the mail delivery of abortion pills for earlier-term procedures.

In October, District Court Judge Michael Moses temporarily enjoined the laws, writing that the abortion providers suing the state successfully argued that the policies appear unconstitutional under the state’s constitutional rights to privacy, individual dignity and equal protection. That “at-first-glance” standard is sufficient in Montana to prevent a law from taking effect while litigation continues.

In the state’s appeal, Knudsen tried to convince the higher court that Moses used the wrong legal standard for temporarily enjoining laws. He said Planned Parenthood of Montana should have been required to show it was likely to succeed on the merits of the case, an argument the state Supreme Court rejected based on a hundred years of precedent.

“Based on its application of our existing precedent and the record before it, we conclude that the District Court did not commit an error of law or manifestly abuse its discretion,” the ruling said. 

Since at least 1912, Baker said, Montana has required plaintiffs in similar cases to prove “a showing of entitlement to temporary relief,” but does not require them to prove they can win their case outright. 

“The State conspicuously argues that Providers should be required to prove that the challenged laws are unconstitutional at the preliminary injunction stage,” Baker’s opinion said. “There is no support in the plain reading of the statute or in any of our precedents for this interpretation.”

Knudsen’s office also argued that the state Supreme Court should overrule its bedrock abortion rights case, Armstrong v. State, which found the procedure to be constitutionally protected. The court rejected that appeal, too, saying a preliminary injunction was not the time or place for such a deliberation.

“As we do not determine the ultimate merits of a case on appeal from a preliminary injunction, we decline to overrule precedent in such an appeal, when the very purpose of a preliminary injunction is to maintain the status quo pending that final determination.”

The attorney general’s office criticized the ruling in a statement Tuesday evening. 

“The current standard for preliminary injunctions is so low that it’s not really a standard at all. As a result, constitutional laws like these may be blocked for months — or even years — before courts ever decide cases on the merits,” said Department of Justice spokesperson Emilee Cantrell. “Armstrong was wrong the day it was decided and its use in delaying these commonsense laws that protect the health and safety of Montana women makes that even more clear.”

Cantrell called the court’s decision not to consider the merits of Armstrong at this point “unfortunate,” and a reaffirmation of the “radical” and “made-up” 1999 decision.

Gianforte, who also asked the state Supreme Court to reconsider the Armstrong precedent in light of the U.S. Supreme Court’s overturning of Roe v. Wade, said on Twitter that the state Supreme Court’s decision “kicked the can down the road today on Armstrong.” 

“With Roe overturned, the Montana Supreme Court must revisit its decision in Armstrong, and I look forward to it doing so promptly,” Gianforte said. 

Martha Fuller, the CEO and president of Planned Parenthood of Montana, said on Tuesday that her organization welcomed the court’s decision.

“We are pleased that the Montana Supreme Court ruled today to uphold the preliminary injunction put in place by the district court in the fall. This means that three anti-abortion laws remain unenforceable, including a 20-week ban,” Fuller said. Because the court did not overrule Armstrong, Fuller said, “abortion remains legal in Montana, protected by our constitutional right to privacy. This is a victory for our right to make personal medical decisions, free from the interference of government.”