Battle Over Access

Having elected its first anti-abortion governor in 16 years, Montana has joined other states in passing laws to restrict abortion access while courts decide if they violate the Constitution

By Maggie Dresser
The Montana State Capitol building in Helena. Beacon file photo

For 16 years, those seeking an abortion in Montana have been free to either walk into one of the few clinics in the state or have a medical abortion through telehealth knowing they have a constitutional right to end their pregnancy.

But when Montana voters elected Gov. Greg Gianforte in 2020, the controversy over abortion access reignited after more than two decades without a major court case. As the Republican-led Legislature entered its session in 2021, lawmakers introduced four anti-abortion laws restricting access, all of which were signed by Gianforte, that would have likely been vetoed under two previous Democratic administrations.

Critics of the bills, which received support from Republican lawmakers statewide, including several in Flathead County, say they effectively restrict telehealth, shorten the gestation period of legal abortions and require unnecessary procedures, creating access barriers.

House Bill 140 requires medical providers offer patients an opportunity to view an ultrasound and listen to a fetal heart tone before an abortion. House Bill 171 requires that abortion-inducing medication be distributed in person in addition to requiring extensive information be provided to, and collected from, the patient. House Bill 136 restricts abortions after 20 weeks of gestation. And finally, House Bill 167 would place a referendum on a 2022 ballot that would place severe penalties on medical providers who have not provided life-preserving treatment to a newborn infant following an abortion procedure.

“I think this is really the biggest threat we have seen for the last 16 years,” said Martha Stahl, the CEO at Planned Parenthood of Montana. “For 16 years, we had governors who would veto anti-abortion access bills.”

Following the bills’ passage, Planned Parenthood of Montana filed a lawsuit challenging all four, arguing they are unconstitutional and violate Montana’s protection to the right to privacy.

Yellowstone County District Court Judge Michael Moses issued a preliminary injunction last month for three of the bills, excluding only the law that calls for a 2022 ballot referendum, writing in his decision that patients would be “irreparably harmed through the loss of their constitutional rights.”

While the new laws are halted for now, Stahl says at Planned Parenthood they are preparing for the state to appeal the preliminary injunction.

“We’ll see how that goes in the Montana Supreme Court,” Stahl said. “We’ll keep moving forward … It’s hard to know what the court will do and what the exact timeline is.”

Protesters stand in front of All Families Healthcare sexual and reproductive health clinic in Whitefish on Nov. 11, 2021. Hunter D’Antuono | Flathead Beacon

Abortion access in such a geographically spread-out state has never been easy in the 147,040 square miles it covers.

There are five abortion clinics in Montana with three Planned Parenthood branches in Billings, Helena and Great Falls along with Blue Mountain Clinic in Missoula and All Families Healthcare in Whitefish. No clinics exist on the eastern side of the state and Great Falls only provides medical abortions. Patients statewide can get an abortion through telehealth.

According to survey data collected by the Guttmacher Institute in 2014, nearly one-fifth of U.S. abortion patients traveled more than 50 miles one way for care.

In addition to Montana’s rural landscape, which creates proximity barriers for all healthcare, current laws also limit provider’s qualifications, requiring a medical doctor (MD) or a physician’s assistant (PA) to perform an abortion.

In 2018, The Center for Reproduction Rights and the American Civil Liberties Union of Montana requested a preliminary injunction on behalf of Whitefish-based Advanced Practice Registered Nurse (APRN) Helen Weems to block the law so she could provide abortions in northwest Montana, arguing that the state faces a shortage of abortion providers. The district court granted the request, which blocked the law and allowed Weems to receive training under her mentor, Susan Cahill, a PA and retired abortion care provider in Kalispell whose clinic was destroyed in 2014 after a 24-year-old man broke in and vandalized it.

Weems has been providing abortions at All Families in Whitefish since 2018 under the injunction and she’s still waiting for a judge to decide if she and other APRNs and Certified Nurse Midwives can provide abortions in Montana.

Now, the state’s new legislation is causing Weems additional concern, as well as an added degree of uncertainty.

“This is an absolutely terrible time in history for abortion access,” Weems said in an email. “We are getting hit both at the state and federal levels. There are more restrictions on abortion access passed in the state legislatures in 2021 than in any year since the passage of Roe v. Wade.”

But several legislators in Flathead County who supported the laws maintain they are intended to protect women’s safety, arguing the state’s constitution does not furnish individuals with a right to privacy.

“There is no constitutional right to privacy no matter what people say,” Rep. John Fuller, R-Whitefish, said. “There is no right to privacy. The word isn’t even in the constitution.”

Fuller supported each bill based on his belief that abortion is unconstitutional and called the temporary injunction “a classic case of legislation from the bench,” arguing that representatives voted overwhelmingly and there is nothing “constitutionally egregious” about any of them.

“I look at things legalistically and modern science has proved that upon conception, a new and distinct DNA has been created,” Fuller said. “We use DNA as the legal definition of a person … Therefore we have a new person. The fourteenth amendment says no state shall deny any person due process of law.”

Rep. Derek Skees, R-Kalispell, was also unhappy with the court’s decision to grant an injunction, calling it a failure.

“There’s no basis in our constitution to use the right to privacy to murder a baby,” Skees said. “The courts have humongously failed and we need to throw out Montana’s socialist rag of a constitution.”

Skees doesn’t view the new laws as a barrier to healthcare, he said, describing them as measures intended to prevent death.

Appreciation cards adorn a door in All Families Healthcare sexual and reproductive health clinic in Whitefish on Nov. 11, 2021. Hunter D’Antuono | Flathead Beacon

“Mothers that choose abortion are the number one killers of babies,” Skees said. “We’re wiping out generations of workers. That’s the story, not access to healthcare. If it’s not your DNA, it’s not your body and it’s not your choice.”

At Clear Choice Clinic, a reproductive and sexual healthcare center that does not provide abortions, Executive Director and Registered Nurse Michelle Reimer says that while she does not participate in anti-abortion legislation, she supports each law.

“I’m a Christian woman and I don’t believe in abortion,” Reimer said. “I help women understand her options.”

Reimer says the laws protect women’s safety and reduce traumatizing situations. House Bill 171, which requires abortion-inducing drugs to be provided in-person instead of through telehealth, is particularly important to her because she says an ultrasound should be required.

“There’s one huge missing component and that is an ultrasound,” Reimer said. “With telemedicine, women aren’t having ultrasounds before they have an abortion.”

Stahl says law prohibiting telehealth abortions, which also requires three appointments, adds barriers for women that already have difficulty accessing an abortion in a large rural state. At Planned Parenthood of Montana, 25% of all visits, including birth control services, are through telehealth services. After viewing telehealth data in the past year, Stahl said on average patients would have had to drive 90 minutes each way if telehealth was not available, disproportionally affecting people who live in rural areas and who don’t have reliable transportation.

For someone living in the northeastern corner of Montana, they would have to travel more than 300 miles in one direction to receive an abortion at the nearest clinic in Billings.

“The medication abortion law would be more far reaching in its effect on people seeking abortion in Montana … Anti-choice legislators recognize that medication abortion by mail increases access to abortion exponentially and they will do anything to make it illegal,” Weems, of All Families Healthcare in Whitefish, said.

While the court has protected abortion access in Montana for the short-term, the future is in limbo and Stahl and Weems are preparing for what’s to come.

Stahl says the state has signaled a plan to appeal the preliminary injunction and the case will likely go to the Montana Supreme Court, but she says it’s hard to say what the timeline will be and what the court will decide.

After Texas recently banned abortion after six weeks, Stahl says it doesn’t directly impact other states but it could set a framework for the rest of the country.

A rally for reproductive rights drew a crowd of hundreds to Whitefish on Oct. 2, 2021, in response to the passage of more restrictive abortion laws in Montana. Photo provided by Joan Vetter Ehrenberg

“If the U.S. Supreme Court says a six-week ban is constitutional, other states could enact a six-week ban,” Stahl said. “But it doesn’t mean every state will. If their state’s law is stronger than the court, the state gets to decide.”

The strength of Montana’s right to privacy protection puts the state in that category, Stahl said.

“If a six-week ban is upheld, the (Montana) Legislature could pass a six-week ban and the governor could sign it,” Stahl said. “But the Montana Supreme Court could still overturn it.”

On the federal level, if Roe v. Wade, the landmark U.S. Supreme Court decision that protects the right to choose to have an abortion, is overturned, abortions will still be legal in Montana.

According to the Guttmacher Institute, 11 states have trigger laws, meaning they will automatically ban abortions if Roe v. Wade is struck down, including North Dakota, South Dakota and Idaho. Since Montana borders three trigger states, Stahl says its clinics will likely see more people seeking an abortion traveling from other states.

“I think it will be very difficult for providers to keep up,” Stahl said. “People would be waiting a long time for care.”

Meanwhile, Weems is still waiting to hear a decision about her separate case, which will decide whether nurse practitioners and certified nurse midwives can continue providing abortions. But even if Weems cannot continue as a nurse practitioner, she says All Families will remain open and continue providing abortion care.

“(We’re going to) keep on fighting,” Weems said. “These laws do not represent the will of the majority … We will keep fighting and caring for our patients. We aren’t going anywhere.”

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