Montana Department of Public Health and Human Services DPHHS
Credit: Eliza Wiley / MTFP

Medical providers, former patients and other opponents presented a wave of testimony Thursday against the state health department’s proposed rule change that would add requirements for an abortion to be covered by Medicaid, including submitting patient medical information to prove a procedure is medically necessary. 

Notice of the administrative rule change was first published in late December, the day before Christmas Eve. The proposal is the Department of Public Health and Human Services’ response to a study requested by Republican lawmakers in 2021 into how Medicaid funds are being spent on abortions. While federal law prohibits Medicaid use for most abortions outside of rape, incest or a medical risk to the life of the mother, a state court in 1995 decided that Montana’s state Medicaid dollars must cover abortions if they are deemed “medically necessary.” 

More than two dozen people spoke against the proposal during Thursday’s virtual hearing, with at least 90 people in attendance on the call. The sole proponent was Derek Oestreicher, lead counsel for the conservative policy group the Montana Family Foundation, who said the organization supports changing the process to ensure taxpayer funds are not covering “elective non-therapeutic procedures.”

Doctors, nurses and patients with personal abortion stories urged the department to reject its own proposal, saying the rule unfairly targets and delays care for some of Montana’s most financially vulnerable patients and interferes with the patient-provider relationship.

“When restrictions are placed on medically necessary abortion, women’s health suffers,” said Leah Miller, a Missoula physician representing the American College of Obstetrics and Gynecology. “Restrictions disrupt the patient-provider relationship and disproportionately affect low income women and women who live long distance from providers.”

At times, physicians and former patients openly cried during testimony, explaining how personal and time-sensitive abortions can be. One opponent, Lorrie Morgan, recounted an abortion she had as a college student in 2002 when she was on Medicaid. Morgan said her baby had died following a complication during a prenatal medical procedure, though she didn’t realize until her doctor delivered the news during a later appointment.

“It was a very, very sad, shocking time. And I think any barrier to women, getting in between women and their physicians during this time, is unethical. Just period,” Morgan said. “Women and their doctors should be the only ones to be making these decisions. And we need to make these decisions promptly.”

Currently, providers submit a form stating that an abortion was medically necessary but are not required to turn in additional information. If adopted, the Gianforte administration’s rule change would require providers to obtain advanced authorization for Medicaid coverage and supply supportive medical records, such as a patient’s age, medications, “number of times the patient has been pregnant and number of times she has had a live birth, last menstrual period, status and results of any pregnancy test, allergies, chronic illnesses, surgeries, behavioral health issues, smoking, substance abuse, and obstetric history.”

Other providers, including maternal-fetal medicine specialists and representatives of abortion clinics, said the proposed process was unnecessary and could pose risks to patients who need expedient medical care. Dr. Timothy Mitchell, a Missoula doctor, testified that ending a pregnancy even because of severe fetal anomalies may not be considered medically necessary by the department’s standards.

“Instead, these patients would be forced to carry these pregnancies to full term, increasing their own risks of complications and prolonging their grieving and healing,” Mitchell said. “Policies that regulate medical care should be based on scientific evidence, best practices, and preserve the physician patient relationship. Unfortunately, these proposed changes to Medicaid threaten communication between physicians and patients and undermine the physician’s medical judgment.”

The rule change would also bar nurse practitioners and physician assistants from billing Medicaid for abortions, despite the fact that those professions and physicians can all legally practice abortion services in Montana. Akilah Deernose, an attorney for the ACLU of Montana, said that provision is just one part of the rule that the civil rights group considers unconstitutional and contradictory to the state court ruling in 1995.

“That court confirmed that the state cannot via administrative regulation create a general program that provides medical services to low income Montanans and then selectively pluck out abortion care for differential treatment by withholding benefits,” Deernose said. “The choice to exercise the constitutional right to abortion should not be dependent on income. That violates the spirit and letter of both the statutory and constitutional law of Montana.”

Although the state health department did not provide a rebuttal to Thursday’s testimony, its written justification for the rule says the change will help to ensure that the state is complying with the court’s decision about medical necessity. 

Public comment can be submitted in written format to the department until 5 p.m., on Jan. 20. The department has not said when it intends to issue its final decision about the proposed change.

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.