Update May 2, 2023: A Helena district court judge issued a temporary restraining order in the case late Monday, blocking the state from enforcing its new requirements for Medicaid patients until the court can hold a hearing. The ruling, drafted by plaintiffs and issued by now-presiding Judge Mike Menahan, found that attorneys for the abortion clinics had established they are “likely to succeed on the merits of their claims” and that the absence of a restraining order would create “immediate and irreparable injury” by violating constitutional rights. A preliminary injunction hearing about whether the judge should enjoin the rule while the case proceeds is scheduled for May 12.
Montana abortion providers on Friday sued the state health department in an attempt to block a new rule adopted by the Gianforte administration’s health department that restricts how the state will pay for abortions through its Medicaid program.
The 34-page complaint, filed on behalf of Planned Parenthood of Montana, All Families Healthcare and Blue Mountain Clinic, argues the new rule “has the purpose and effect of depriving low-income Montanans of access to abortion” and conflicts with the Montana Constitution, state legal precedent and the state procedures for adopting new rules.
In a statement announcing the lawsuit, the clinics cast the rule as part of a broader effort to curtail access to abortion and limit reproductive choice. The rule is scheduled to take effect May 1, this coming Monday.
“Pregnant people who rely on Medicaid deserve the same vital, timely, and potentially life-saving care as every other Montanan. Unless this rule is blocked, health inequity in the state will dramatically increase as patients are forced to travel even further afield to access the health care they need, if they can at all,” the announcement said.
The lawsuit seeks a temporary restraining order as well as a preliminary injunction, both measures that would block the rule while the case moves forward. The suit was filed Friday afternoon in Helena, the state’s first judicial district. It was initially assigned to Judge Kathy Seeley.
The state of Montana, the state Department of Public Health and Human Services and health department director Charlie Brereton are named as defendants in the case.
“We stand by our rule to protect the integrity of Montana’s Medicaid program and look forward to defending it in court,” Brereton said in a written statement provided by a spokesperson Friday evening.
Medicaid coverage for abortion varies by state. Under the national Hyde Amendment, federal funds cannot be used for abortions unless in the case of a life-threatening emergency, rape or incest. However, states can allow their own Medicaid funds to subsidize abortions in a broader set of circumstances.
A 1995 district court case, Jeannette R. v. Ellery, found that Montana was required to provide Medicaid coverage for abortions when they were “medically necessary,” a standard that has now been in place for nearly 30 years.
The state health department, whose director is appointed by Gov. Greg Gianforte, a Republican, proposed the new rule in late December. The rule, which would change to how the state evaluates medical necessity and authorizes Medicaid coverage, was officially published on April 28, after undergoing a round of public comment in January. During that hearing, only one person spoke in favor of the new rule while more than two dozen testified in opposition.
The new process limits Medicaid coverage for abortions to those conducted by physicians, blocking reimbursement for advanced practice registered nurses and physician assistants who currently provide abortions in the state. The rule also requires providers to submit additional documentation and patient information to receive pre-authorization for Medicaid coverage. Under the prior standard, patients could qualify for Medicaid coverage after their procedure if a provider attested on a written form that their abortion was medically necessary, an emergency, or if the person was pregnant as the result of rape or incest.
The new limits on practitioners, documentation standards and pre-authorization, plaintiffs argue, implement a “de facto waiting period” for abortions and forces patients who could otherwise obtain a medication abortion via telehealth to undergo an in-person examination.
“Montanans impacted by the Rule are by definition low-income, and for most of them, the denial of coverage is tantamount to a ban,” the lawsuit says. “The Rule will thus force the most vulnerable in the state to continue their pregnancies and give birth, with all of the emotional, physical, and life-altering consequences this entails.”
The lawsuit also says that Montana abortion clinics would be seriously disrupted by the rule because of their patient demographics and providers — most of whom are not physicians.
All Families Healthcare in Whitefish, which provides sexual and reproductive health services including abortions up to 12 weeks, says in the suit that more than half its patients are covered by Medicaid and that its primary provider, Helen Weems, is a nurse practitioner. Blue Mountain Clinic in Missoula stated it has one physician and two physician assistants providing abortions — the two providers excluded under the new rule provided 24% of all the clinic’s Medicaid-eligible abortions in 2022. That year, the lawsuit states, advanced practice clinicians at Planned Parenthood of Montana conducted 85% of abortions provided by the organization that were covered by Medicaid.
The lawsuit says the rule violations the rights to privacy, equal protection and dignity as well as the right to seek safety, health and happiness outlined in the state constitution. Additionally, the filing argues that the rule conflicts with the Montana Administrative Procedures Act by being arbitrary and creating onerous requirements that are not “reasonably necessary.” Finally, the suit claims the rule violates a patient’s right to seek services from their provider of choice, a provision in the 1999 Armstrong v. State ruling that broadly protects abortion access under the state Constitution’s right of privacy.
Republican lawmakers in the state Legislature are advancing two separate bills that would also regulate Medicaid coverage for abortions. House Bill 544 would insert a near-replica of the state health department rule in state law. Another, House Bill 862, would restrict all use of state public funds for abortion except in cases of rape, incest, or risk of the pregnant person’s death — language that matches the federal Hyde Amendment. Both bills have cleared the House and Senate but hadn’t been transmitted to the governor’s office as of Friday evening.
Plaintiffs are represented by Montana attorneys Raph Graybill of the Graybill Law Firm, Tanis Holm of Edmiston & Colton Law Firm, Erin Erickson of Bohyer, Erickson, Beaudette, and Tranel P.C., the New York-based Center for Reproductive Rights, Planned Parenthood Federation of America and the ACLU of Montana.
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