Judge Rules Against Montana Law Limiting Abortion Providers

The high court said the right to privacy in the Montana Constitution protects a woman's autonomy over her reproductive health

By Associated Press
Montana State Capitol. Beacon file photo

HELENA – A Montana law that prevented advanced practice registered nurses from performing some early abortion procedures is unconstitutional, a state judge ruled Friday.

District Court Judge Mike Menahan ruled that certified nurse practitioners and certified nurse midwives who have the proper training and certification can perform pre-viability abortion services within their scope of practice.

“Today’s decision is a huge win for Montanans,” said nurse practitioner and clinic owner Helen Weems of Whitefish, one of two plaintiffs who in 2018 challenged a law that allowed only physicians and physician assistants to perform abortions.

“Recognizing nurse practitioners and nurse midwives as safe, competent, legal providers of abortion is a significant step forward in making abortion more accessible in our state,” Weems said in a statement.

The Center for Reproductive Rights and the ACLU of Montana represented Weems and a nurse midwife identified in court documents as Jane Doe in the case against the state.

“Today’s ruling comes at a perilous time for abortion rights, and it is a relief to pave the way for abortion access to be expanded in Montana, rather than further restricted,” said Hillary Schneller, senior staff attorney at the Center for Reproductive Rights.

In April 2018, Menahan allowed Weems and Doe to perform abortion procedures — provided they had proper training and experience — while they challenged the constitutionality of the law.

The following year, the Montana Supreme Court, in a 4-3 decision, upheld Menahan’s earlier ruling.

The rulings cite a 1999 Montana Supreme Court decision that allowed physician assistants — not just physicians — to perform abortion procedures.

The high court said the right to privacy in the Montana Constitution protects a woman’s autonomy over her reproductive health and, in this case, “the right to seek and to obtain a specific lawful medical procedure, a pre-viability abortion, from a health care provider of her choice.”

Menahan’s ruling noted the Montana Board of Nursing says advanced practice registered nurses are medically qualified to perform medication and aspiration abortion services as long as they have the proper training and certification. They were only being limited by state law, he said.

“The state has failed to demonstrate a compelling interest in limiting abortion providers to licensed physicians and physician assistants,” Menahan wrote.

“Once again abortionists sued to lower the standard of care for Montana women in order to further their financial interests in performing as many abortions as possible,” said Emilee Cantrell, spokesperson for Attorney General Austin Knudsen. “We are reviewing the order to determine our next steps.”

In January, Knudsen asked the Montana Supreme Court to overturn the 1999 ruling that found the state constitution’s right to privacy guarantees a woman’s access to abortion.

Planned Parenthood is using that precedent to challenge three abortion laws passed by the Republican-controlled 2021 Legislature — one that would ban abortions after 20 weeks of pregnancy, another to restrict access to abortion pills and a third to require abortion providers to ask patients if they would like to view an ultrasound or hear the fetal heartbeat.

A state judge has granted an injunction against enforcing the three laws.