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Abortion restrictions struck down by state court

The slate of 2021 laws restricted telemedicine abortion and procedures after 20 weeks and required ultrasounds to be offered.

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A state district court judge in Yellowstone County has ruled that three Republican-backed abortion restrictions passed in 2021 are unconstitutional, delivering another blow to conservatives who support limiting when and how Montanans can terminate pregnancies and a win for advocates of reproductive rights.

The years-long case, brought by Planned Parenthood of Montana, deals with three laws from the 2021 Legislature that, respectively, sought to restrict abortion after 20 weeks of pregnancy for the sake of avoiding fetal pain; widely prohibit medication abortions provided via telemedicine; and require providers to offer patients an ultrasound and the opportunity to listen to a “fetal heart tone.” All three laws would punish violating medical providers with criminal or civil penalties. 

The 19-page ruling was written by District Court Judge Kurt Krueger, who typically presides in Butte but was substituted to oversee the latter stage of the legal challenge in Yellowstone County last fall. Krueger’s ruling permanently enjoined all three laws in their entirety, citing constitutional violations of privacy, equal protection and free speech, and impermissible vagueness when dealing with criminal penalties.

The order also repeatedly cited the Montana Supreme Court decision in Armstrong v. State, the 1999 ruling that found pre-viability abortion to be constitutional under the state constitution’s right to privacy, which Krueger called the “bedrock” of Montana’s abortion rights that requires the state to identify a “compelling state interest” to regulate abortion care.

“But such regulations must arise from the professional judgment of the medical community,” Krueger wrote. “It is not up to legislators to substitute their ‘personal values and beliefs’ for the ‘collective professional judgment and expertise’ of properly licensed medical providers. Yet the three laws at issue here attempt to do just that. Under the guise of concern for the patient, they invade the private ‘treatment room,’ imposing severe burdens on both without clear justification supported by credible evidence. In doing so, they exert a form of ‘unrelenting pressure’ on providers, which Armstrong found ‘intellectually and morally indefensible.’”

Krueger’s conclusion continued: “Worse, the laws have the practical effect of inhibiting — or outright preventing — access to care for some of the most ‘intimate and personal’ choices, rendering moral judgment on patients by subtly stigmatizing already-difficult decisions. The court finds all three laws incompatible with the text of the Montana Constitution and values it recognizes, and therefore deems them void and unenforceable.” 

In a statement praising the ruling Thursday afternoon, Planned Parenthood of Montana president and CEO Martha Fuller said the organization would continue to challenge abortion restrictions passed by the state Legislature.

“We are relieved that Montanans will no longer live with the threat of these harmful restrictions taking effect. But make no mistake, our fight continues. For years anti-abortion politicians at all levels of government have made banning abortion their number one priority, despite the current protection held in our state constitution,” Fuller said, referencing additional lawsuits stemming from the 2023 session. “We will never stop working to ensure that all Montanans and those who are forced to travel here for care can access the care they need.”

Emilee Cantrell, a spokesperson for Attorney General Austin Knudsen’s office, did not respond to requests for comment about the Thursday court ruling.

Kaitlin Price, a spokesperson for Gov. Greg Gianforte, issued the following statement Thursday afternoon: “Unfortunately, the activist court put its desired political outcomes ahead of the law and common sense by throwing out these three reasonable, popular measures that Montanans’ duly elected representatives overwhelmingly supported.”

In arguing to uphold House Bill 136, which broadly prohibits abortions after 20 weeks, the state asserted its ability to regulate medical procedures and providers and its compelling interests in preventing the “unnecessary loss of fetal life,” protecting fetuses from pain and protecting the patient from complications associated with abortions later in pregnancy.

But, citing expert testimony, Krueger said there was no medical consensus about fetal pain at 20-24 weeks gestation and that the state had not presented sufficient evidence of a “bona fide health risk as determined by the medical community.” Krueger also found that fetal pain alone is not sufficient to allow intrusions on the right to privacy.

“If that were the case, the state might well be justified in banning pregnancy altogether for fear that the mother (or the baby) could experience pain in childbirth,” Krueger wrote, later adding that HB 136’s restrictions “smacks of the ideologically motivated legislation condemned by the Court in Armstrong and fails to show the ‘collective professional judgment, knowledge and experience of the medical community’ necessary to demonstrate a compelling regulatory interest.”

Krueger similarly found insufficient evidence to support the state’s arguments for restrictions in House Bill 171, which the judge said contained “a panoply of restrictions” on medication abortion, the primary method used for earlier-term procedures, especially for rural patients without easy access to an in-person provider.

“It violates the right to privacy by imposing numerous and severe burdens on patients and providers, which lack a basis in demonstrable medical science and do not apply to any other medical treatment,” Krueger wrote of HB 171. “These restrictions effectively ban an entire method of treatment, which otherwise serves a critical gap in care, under the guise of protecting the very patients whose rights they undermine.”

Regarding House Bill 140, the requirement for providers to offer ultrasounds to patients, the state argued the law contributed to “voluntary informed consent” for the patient, a feature attorneys argued was “vital to any non-medical procedure to avoid a battery.” Krueger, however, said those arguments lacked evidence and that the law wrongly compelled speech for medical providers.

“There is no medical consensus that fetal heart tone listening is a medically necessary component of clinical decision-making related to abortion,” Krueger wrote. Comparatively, the judge continued, ultrasounds are not required when a pregnant patient decides to continue with their pregnancy.

“Because the ultrasound and fetal heart tone requirements do not correspond to bona fide health risks and only apply if a patient decides to terminate a pregnancy, the court is left with the strong impression that the law aims to advance the ulterior motive of discouraging abortion,” Krueger wrote. “That is unacceptable under the law.”

Cantrell, with the attorney general’s office, did not respond to a question about the state’s intent to appeal Krueger’s order to the Montana Supreme Court. A notice of appeal had not been filed Thursday afternoon.


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