A Montana judge has blocked the enforcement of three restrictive abortion laws in the state, finding that the laws are in violation of the state constitution and unfairly deny Medicaid recipients access to abortion.
Abortion has been legal in Montana up to the point of fetal viability (usually around 22-25 weeks) since 1999, when the state Supreme Court issued a ruling establishing the standard. Montana residents also passed a state constitutional amendment last fall officially formalizing that ruling within the governing document.
The ruling from Judge Mike Menahan for the Montana District Court for Lewis and Clark County examined three separate laws:
- House Bill (HB) 544, which requires “prior authorization” for abortion care and only allows physicians in the state to provide abortion services;
- HB 862, a law that prohibits public funds (including Medicaid) from being used to pay for patients’ abortions in the state;
- And a Montana Department of Public Health and Human Services (DPHHS) rule, which carries the same weight as a law, and similarly stipulated that abortions couldn’t be carried out by anyone other than a doctor, thereby excluding advanced practice clinicians and other qualified health care workers from being able to perform the procedure. The rule also requires pre-authorization approval, including a physical examination and documentation of a patient’s records, before an abortion can occur.
Beyond the state constitutional amendment on abortion access, Menahan also examined how the laws and the rule violated the state constitution’s “right to privacy” provision. Citing the same 1999 state Supreme Court ruling, Menahan noted that the right to an abortion encompasses a “moral right and moral responsibility to decide, up to the point of fetal viability” what a person’s pregnancy “demands of [them] in the context of [their] individual values…[and] personal situation.”
The judge also compared the laws and the rule to the state’s equal protection clause, noting that Medicaid recipients seeking abortion care are not being treated equally to those choosing to carry out their pregnancies to term.
Prior authorization is required before a person on Medicaid can obtain the procedure — yet “Montana Medicaid does not require prior authorization or a waiting period for other reproductive health care services such as contraception, ultrasounds, or other gynecological services,” Menahan wrote. “Pregnant women who seek to terminate their pregnancy are subject to one definition of medical necessity while pregnant women who seek to carry their pregnancy to term are subject to another definition of medical necessity.”
A person’s right to decide on issues relating to their pregnancy — including those on Medicaid — “prior to fetal viability outweighs the State’s interest in protecting a potential life at the expense” of that person’s health, Menahan concluded.
Reproductive rights groups in the state, including those involved in the lawsuit, heralded Menahan’s ruling.
“Every Montanan deserves the ability to access quality, timely health care, regardless of where they live or how much money they make,” read a joint statement from Planned Parenthood of Montana, Center for Reproductive Rights, ACLU of Montana, Blue Mountain Clinic, and All Families Healthcare. “We are relieved that these dangerous restrictions have been struck down for good, and that patients will continue to have the access that these laws would have forbidden.”
State GOP lawmakers are likely to appeal the ruling. In a statement emailed to Truthout, Martha Fuller, president and CEO of Planned Parenthood Montana, said her organization and others involved in the litigation wouldn’t back down.
The ruling “was a victory for Montanans’ reproductive rights, and it enables abortion providers in Montana to keep providing abortion care to Medicaid patients,” Fuller said. “If the State appeals the ruling, we stand ready to continue to defend the fundamental rights of Medicaid patients at the Montana Supreme Court.”
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