Montana Gov. Greg Gianforte on Tuesday announced signing four abortion restrictions into law, including an immediate ban on dilation and evacuation abortions, the most common type of procedure after about 15 weeks of pregnancy. The governor’s office said other bills signed this week included two restrictions on Medicaid coverage for abortion and stricter regulations for clinics.
The package of legislation, in addition to five other bills the Republican governor approved earlier this month, is expected to kickstart at least one legal challenge from reproductive rights groups seeking to maintain Montana’s status as a state with strong legal protections for abortion access. Gianforte’s sanctioning of the long-standing conservative agenda also came days after the Montana Supreme Court upheld a nearly 25-year-old legal precedent allowing abortion access under the state Constitution’s right to privacy. That case, Weems v. State, found that advanced practice nurse practitioners with proper training can provide abortions in Montana and reaffirmed that women have a fundamental right “to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.”
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With some Republican abortion restrictions signed into law, critics blast government overreach into personal health care choices
In the wake of the 2023 Legislature, the Montana Republican Party on Wednesday celebrated a stack of new laws restricting abortion and reproductive health care, setting up a likely clash with the state’s nearly 25-year-old court ruling that broadly permits abortion as a private medical choice.
That ruling did not temper the governor’s enthusiasm for endorsing additional abortion restrictions Tuesday.
“I’m proud to round out our legislative session with another suite of pro-life, pro-family bills that protect the lives of unborn babies in Montana,” Gianforte said in a written statement about the bill signings.
The governor did veto one abortion bill on Tuesday, House Bill 968, to revise parental consent laws for minors seeking an abortion when they are under 16 years old. In his veto letter, Gianforte said the Republican-sponsored bill would effectively weaken parental rights and increase consultation from medical professionals. Helena District Court Judge Chris Abbott is still considering an ongoing case about whether a parental notification requirement for a minor’s abortion is legal.
A press secretary for the attorney general’s office did not respond to questions Monday about how Attorney General Austin Knudsen plans to enforce the dilation and evacuation ban, House Bill 721.
As written, the bill bars “dismemberment abortion,” a nonmedical term that the legislation defines in part as “the use or prescription of any instrument, medicine, drug, or other substance or device” to intentionally terminate pregnancies and the “insertion of grasping instruments” to remove a fetus. The bill makes exceptions for abortions used to treat an ectopic pregnancy or “a separation procedure performed because of a medical emergency and prior to the ability of the unborn child to survive outside of the womb with or without artificial support.” Medical practitioners found to have violated the law, the bill says, are guilty of a felony and could be subject to a $50,000 fine and up to 10 years in prison.
Representatives of Planned Parenthood of Montana, one of the state’s abortion providers impacted by the new law, framed HB 721 as contradictory to the state Constitution and medical best practices in a Tuesday statement. The group filed a motion for a temporary restraining order shortly after 2:00 p.m., asking Helena District Court Judge Mike Menahan to prevent the state and the attorney general’s office from enforcing the law.
“Absent emergency injunctive relief, Montanans will be irreparably harmed by denial of their constitutionally protected right to access pre-viability abortion care and will suffer irreversible health consequences,” the filing said.
Montana’s Planned Parenthood affiliate first attempted to block enforcement of HB 721 in April, before the legislation was transmitted to the governor’s desk. Despite the organization’s claim that the bill’s immediate effective date would disrupt services and put providers in legal jeopardy, Helena District Court Judge Kathy Seeley dismissed the motion for being premature.
In later court filings, attorneys for the state attorney general’s office called the April lawsuit and motions to block HB 721 “frivolous” because the bill had not yet been signed into law. Attorneys also moved to sanction lawyers for Planned Parenthood of Montana, specifically Raph Graybill of Graybill Law Firm, for allegedly not acting in good faith when they knew the bill was not yet law. Menahan, who took over the case, has not issued an order on that motion.
Flanked by Republican lawmakers at a bill-signing ceremony in early May, Gianforte pledged his support for HB 721, the restrictions on Medicaid use for abortions and other abortion bills. He proceeded to sign a bill banning abortion after 24 weeks and requiring an ultrasound prior to all procedures; another that interprets the constitutional right to privacy as excluding abortion access; a bill mandating medical care for infants born after an abortion; a “right of conscience” bill for medical providers; and a policy to increase reporting requirements for medication abortions.
“Thank you for protecting life, for protecting our children, for promoting stronger families,” Gianforte said at the time. “Thank you for uniting in our shared belief that every human life is precious and must be protected.”
The bill to require ultrasounds for all abortions, House Bill 575, was blocked from taking effect by Judge Menahan on May 4.
In a separate case, Menahan also temporarily blocked a state health department rule requiring pre-authorization for using Medicaid funds to cover abortions and limiting the providers who can receive that reimbursement to physicians and physician assistants.
That rule — similar to House Bill 544, one of the laws Gianforte signed this week — may now conflict with the Montana Supreme Court’s unanimous decision Friday in the Weems case allowing advanced registered nurses to provide abortions within their scope of practice.
ACLU of Montana attorney Alex Rate, one of the lawyers for the plaintiffs suing over the Medicaid rule, said the most recent state Supreme Court ruling emphasized the strength of Montana’s protections for reproductive rights.
“The right to abortion is going to persist in Montana,” Rate said. “What the courts are very concerned with is the government inserting itself between patients and their private medical decisions.”
Hearings about the challenged abortion restrictions are currently scheduled in Menahan’s court in Helena on May 23.
This story was updated May 16, 2023, to include the filing of a legal motion for a temporary restraining order to to prevent the state and the attorney general’s office from enforcing the law.
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