HELENA – Montana physicians will have to provide prior documentation showing that an abortion is medically necessary before the state’s Medicaid program will authorize payment for the procedure, under a new rule that is set to take effect next week.
However, all three of the state’s abortion providers filed a lawsuit in district court in Helena on Friday to challenge the rule they argue will “effectively eliminate abortion access for most Medicaid patients in the state.”
The providers, along with the ACLU of Montana and the Center for Reproductive Rights, are asking for a temporary restraining order to block the rule arguing it violates the right to privacy and the right to equal protection under the Montana Constitution.
Under the rule, in order for Medicaid to pay for abortions, physicians must provide information about the number of pregnancies and children the woman has, the results results of a physical exam, pregnancy test, gestational estimate as well as documentation of the reason for the procedure and a signed consent form. The prior authorization process is supposed to be completed within three working days.
Montana’s Legislature also passed a bill this week to put similar requirements into state law starting on July 1. That measure will go to Republican Gov. Greg Gianforte for his signature.
The Department of Public Health and Human Services took public comment about the proposed rule change to require prior authorization in January, with opponents saying it could reduce access, delay and possibly prevent abortion care for low-income women. Some opponents argued it would violate their privacy by requiring personal information to be sent to the company holding the prior authorization contract.
The health department said a review of abortions over the past decade led it to believe it was paying for elective abortions because the agency did not receive enough documentation from providers to prove the procedures were medically necessary.
Medicaid regulations say federal money can only be used for abortion care in cases of rape, incest or a threat to the life of the mother. But under a 1995 court ruling, Montana Medicaid must also cover the cost of abortions that are considered medically necessary.
The legislation (i took out an incorrect edit that said it was to take effect Monday) says abortions are considered medically necessary if the woman suffers from a physical condition or a severe mental illness or intellectual disability that would be significantly aggravated by the pregnancy.
Montana Medicaid will only cover abortions provided by physicians — the rule and the legislation state — to meet federal Medicaid guidelines.
Physician assistants can legally provide abortion care in Montana and the Montana Supreme Court heard arguments in December over whether nurse practitioners can provide abortion care if they are properly trained. One nurse practitioner in Montana has been allowed to perform abortions since 2018 under a ruling in that case.
“At Planned Parenthood of Montana, we have nurse practitioners and/or physician assistants in every single health center every day,” Martha Fuller, president and CEO of Planned Parenthood of Montana said in January. “We don’t have physicians in every health center every day. It really would impact access.”
Planned Parenthood has clinics in Billings, Great Falls and Helena. Other providers have in-person clinics in Missoula and Whitefish.
The health department argued a physical exam and documentation ensures the safety of the patient, can rule out ectopic pregnancy and ensure the gestational age is within Food and Drug Administration guidelines for the type of abortion being performed.
The state does acknowledge that in the case of rare, severe fetal abnormalities that would be incompatible with life upon delivery, the situation may not meet the definition of medical necessity and that Medicaid wouldn’t provide coverage.