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According to the letter of the law, Montanans in their second trimester of pregnancy were mostly barred from accessing abortions for nearly 48 hours this week.
After Republican Gov. Greg Gianforte signed House Bill 721 midday Tuesday, the ban on dilation and evacuation abortions except in certain emergency situations took immediate effect. It remained in place until just after 8:30 Thursday morning, when Helena District Court Judge Mike Menahan issued a temporary restraining order blocking the state from enforcing the law.
The order, drafted by plaintiff group Planned Parenthood of Montana, said the state would not be harmed by preservation of the pre-law status quo while, alternatively, “plaintiffs and their patients face immediate, irreparable harm” under the new law, and the public interest is weighted in favor of “ensuring access to constitutionally protected health care services.” State attorneys defending the law argued that it should remain in place, stating that the legislation bans one type of procedure but would still allow pre-viability abortions through other methods, such as induced labor.
Menahan sided with plaintiffs. So why, if House Bill 721 appears to infringe on Montanans’ constitutional right to privacy, was the law allowed to take effect at all? In short, the Republican-held Legislature and the governor, at least temporarily, worked faster than the legal system. In a Thursday phone call, Menahan’s judicial assistant Susan Marcinek attributed the timeline of the ruling to the judge being at a conference all day Wednesday. Menahan also needed time, she said, to read and evaluate the filings from plaintiffs and defendants.
“We have a lot of big constitutional issues coming to the judges. And they are very careful to take their time to really consider them because they have a big impact on a lot of people,” Marcinek said.
The impact of the law’s immediate effective date getting the jump on a less nimble judiciary ended up being more conceptual than practical. Abortion clinics said they saw no attempts by Attorney General Austin Knudsen’s office to implement the new law (spokespersons for the attorney general did not answer questions from Montana Free Press this week about the justice department’s enforcement plans). Providers said no patients were turned away while the law was in effect simply because, by happenstance, no one was scheduled to receive a dilation and evacuation abortion on Tuesday or Wednesday.
If any patients were denied dilation and evacuation procedures in hospital settings, where physicians might perform them to treat serious medical complications during pregnancy, Montana Free Press hasn’t heard about it. The Montana Hospital Association declined to comment on what the new law means for health care providers or how institutions were navigating it while it was in effect. Jean Branscum, CEO of the Montana Medical Association, said the organization is looking closely at the law and waiting to hear how providers are impacted. HB 721 threatens practitioners who perform the banned procedures with a felony punishable by a fine of up to $50,000 and a minimum of five years in prison. That and other penalties in this year’s abortion restrictions, Branscum said, could make providers decide not to practice in Montana.
Medical providers who don’t work in abortion clinic settings told MTFP they were surprised by how suddenly HB 721 became an enforceable policy. Their anxieties about the law’s impacts were not new — a letter signed by three maternal fetal medicine physicians and sent to legislators earlier this year described the banned procedure as generally the safest option for pregnant patients dealing with serious health issues and an important option in tragic circumstances. The rate of patient complications from dilation and evacuation abortions is 0.7 per 100,000 procedures, the letter said, a fraction of Montana’s maternal mortality rate of more than 30 deaths per 100,000 live births.
“We urge you to reconsider the restrictions placed by this bill on a safe medical procedure as well as the harsh penalties on providers,” the letter said. “Government intrusion into medical practice is harmful for families’ health and will lead providers to stop practicing in this state.”
For now, the possibility of that outcome has shifted to a more distant horizon. Attorneys for abortion providers and the state are scheduled to appear in court on Tuesday to make their respective arguments before Judge Menahan. He will eventually decide whether to enjoin the law for the duration of litigation, which could take years. HB 721 is far from the only abortion restriction the judge will have to consider — hearings are also scheduled on Tuesday for three other bills and one administrative rule change, most of which attempt to curb how patients can use Medicaid coverage when doctors deem abortion medically necessary.
—Mara Silvers, Reporter
By the Numbers 🔢
State funding appropriated by the 2023 Legislature, through House Bill 5, to cover operations and maintenance costs for Montana State University’s Gianforte Hall through the next two years. Lawmakers also authorized MSU’s use of $50 million in private funds from the Gianforte Family Foundation to construct the new building, which is named for Greg Gianforte and will house the campus’ Gianforte School of Computing. HB 5 was transmitted to Gov. Gianforte this week and, if signed, will enact $442 million in spending on building and maintenance projects across the university system. Deputy Commissioner for Budget and Planning Tyler Trevor briefed the Montana Board of Regents about the spending package Wednesday, noting that “at least in the last 20 years, we’ve never seen a long-range building program of this magnitude.”
—Alex Sakariassen, Reporter
The Gist 📌
Montana’s House Bill 234 — the so-called obscenity bill — caused quite a stirearly in the 2023 Legislature. Proponents saw the measure as an avenue to protect public school students from graphic material, namely a list of books that have come under fire from national conservatives. Opponents believed HB 234 posed a legal threat to educators, as well as to literary collections housed in schools, public libraries and museums.
On May 10, Gov. Greg Gianforte signed that bill into law. But not before the Senate Education and Cultural Resources Committee had added a series of amendments altering what HB 234 actually does. Still, it’s a complex enough situation to continue causing confusion.
Unlike its earlier version, the new law does not subject school employees to the same criminal penalties as newsstands and other businesses that display obscene material to minors. Instead, it further clarifies that schools, libraries and museums are not commercial establishments, and stipulates that educators and librarians are subject to the same legal restrictions on disseminating obscene material as everyone else in the state.
“The changes in Senate Education turned this bill into what it should have been to begin with, which is a clean-up bill clarifying what laws apply to what circumstances,” Lance Melton, executive director of the Montana School Boards Association, told MTFP this week.
The new law also allows cities, counties and school districts to implement local policies dealing with obscenity if they so choose — the kinds of policies that many schools have had in place for years. That preservation of local control, and the clarifications about which laws are applicable to whom, have largely alleviated the concerns of public education advocates. State Superintendent Elsie Arntzen also noted that the amendments made the bill “more structurally sound.” Even so, the tenor of the obscenity debate still stings for some, as Montana Federation of Public Employees President Amanda Curtis indicated this week. In a statement to MTFP, she argued that HB 234 addresses “a made-up problem” and, as such, “changes nothing as law.”
“It was always a messaging bill using national political rhetoric to undermine the respect Montana’s parents, students and families have for educators,” Curtis said.
—Alex Sakariassen, Reporter
Viewshed 🌄
Gallatin Valley Land Trust and philanthropic foundation AMB West announced Monday they’ve reached a deal to put AMB West’s 8,800-acre Paradise Valley Ranch in Park County into a conservation easement, marking the third conservation easement that Atlanta Falcons owner and AMB West Chairman Arthur Blank has entered into, and the largest such easement in the Paradise Valley. The easements are designed to preserve the land’s agricultural and recreational uses by limiting residential and commercial development.
“It was very important to us when we purchased [Paradise Valley Ranch] that the land was conserved and managed in a thoughtful, responsible way and could serve as a resource for the community,” Blank said in a statement. “We are proud to have partnered with GVLT to finalize a conservation easement ensuring that the natural beauty, ecosystem, and native landscape that makes the ranch so special will be preserved in perpetuity.”
GVLT has secured 16 conservation easements in Park County, in addition to more than 100 statewide. Such easements often create tax benefits for property owners. Blank says he’s donating the financial gains associated with the deal.
According to a recent report by the Park County Community Foundation, the U.S. Department of Agriculture logged a 16% decrease in the number of acres in agricultural production in Park County between 2002 and 2017.
—Amanda Eggert, Reporter
Verbatim 💬
“You can drive around Bozeman and find it right here. Folks are living in campers and in their cars and in their shelters. And others are spending a lot of time driving from remote communities where they can find housing. That puts a lot of miles on their truck, it takes time away from work, it takes time away from their families, because they just can’t afford to live where they work. This includes teachers and nurses and law enforcement officers. These people who work in our community and are the backbone of the community should be able to live in our community. And that’s why we’ve placed such a priority on this problem. And it’s really a supply problem. We just don’t have enough supply.”
—Gov. Greg Gianforte speaking Thursday at the Western Governors Association’s Western Prosperity Roundtable in Bozeman. The conference convened experts from Montana and surrounding states in a panel, moderated by Gianforte, to talk about solutions to the shortage of affordable housing. The governor and Montana Department of Environmental Quality Director Chris Dorrington said they plan to reconvene the Montana Housing Task Force this summer to evaluate progress from the legislative session and future reforms the state might pursue.
On Our Radar 
Amanda — I can’t say I exactly enjoyed this story exploring the gap between research and policy on Montana water quality issues, but I definitely found it worthwhile. “What was working 10 years ago isn’t working now,” the head of the Montana Chapter of the American Fisheries Society told the Billings Gazette. “And eventually that’s going to catch up to the fishery in terms of bug hatches that may be gone down the road and the trout will suffer.”
Alex — Throughout the country, and right here in Montana, Republican lawmakers and elected officials have increasingly taken issue with policies and initiatives that fall under the banner of “diversity, equity and inclusion.” The debate has enveloped college campuses to such a degree that the Chronicle of Higher Education is maintaining a tracker of state-level legislation aimed at limiting the presence of DEI influence in staff training, hiring practices and institutional statements.
JoVonne — The long-awaited film “Killers of the Flower Moon” premiered its first official trailer at the Cannes Film Festival earlier this week, featuring Blackfeet/Niimíipuu actress Lily Gladstone. The film, based on a nonfiction book by David Grann, follows accounts of Osage Indian murders in Oklahoma in the early 20th century. Read more from Rolling Stone, which reported on the trailer’s debut.
Eric — The Missoulian’s David Erickson has been dropping a series of stories examining Montana’s housing crisis this week. One installment, looking at the particular vulnerability of mobile home park residents, was published the same day Gov. Greg Gianforte vetoed a bipartisan bill that would have provided those residents with additional tenant protections.
Mara — For those looking for thoughtful weeknight entertainment, journalist and occasional MTFP contributor Abe Streep will be speaking at the Myrna Loy Theater in Helena at 6:30 p.m. on Thursday, May 25, about his book “Brothers on Three: A True Story of Family, Resistance, and Hope on a Reservation in Montana.” Streep will be in conversation with Donnie Wetzel, director and cofounder of the Montana Indian Athletic Hall of Fame. Hope to see you there!
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