Abortion Clinics Challenge State Licensure Rules

Two Montana abortion clinics on Tuesday challenged new state licensure requirements they argue would restrict abortion access without preventing any “bona fide medical risk.”

Attorneys representing All Families Healthcare in Whitefish and Blue Mountain Clinic in Missoula filed the motion with state District Court Judge Christopher Abbott in Helena to temporarily block the state from enforcing the rules while litigation over their constitutionality continues. 

The filing is a continuation of a year-long legal battle over whether and how the state can require private physician offices that provide abortions to be licensed like some other health care facilities, such as outpatient surgery centers. 

Both clinics said they applied for licensure and requested waivers at the beginning of the month, but argued Tuesday that, if enforced, the rules could lead the facilities to close.

“All Families and Blue Mountain do not and cannot meet certain requirements in the [rules] scheme,” attorneys for the plaintiffs wrote, referencing requirements for hallway widths, a physician medical director and increased staffing requirements when administering anesthesia. “[I]mpending enforcement of the scheme would end or significantly curtail access to abortion and violate the Montana Constitution.”

The law that spawned the state health department’s rulemaking process, House Bill 937, was slated to go into effect last year before the rules were drafted. All Families and Blue Mountain said those circumstances made it impossible for their clinics to comply with the new law and requested it be temporarily blocked due to unconstitutional vagueness.

Last month, the state finalized the long-awaited rules after hearing a mix of public support and opposition about how the policy would impact Montanans and health clinics. The court’s prior order blocking enforcement of HB 937 is slated to expire in November, giving clinics a short window to comply or file additional legal action.

In comments to the health department during the rulemaking process and in the Tuesday legal filing, abortion providers argued that the new requirements treat their clinics differently than other similar facilities. In many situations, plaintiffs said, medical providers can practice in an office or clinic that is not licensed by the state.

“The scheme distinguishes between plaintiffs … and providers who provide identical or more complex care in clinics and offices under that same regulation,” the filing said. “[O]nly providers of abortion are subject to the scheme.”

State officials have argued that the rules are required by the 2023 law passed by the Republican-majority Legislature and that the new standards for abortion clinics are similar to those for licensed surgical centers. If a provider performs abortions only up to a certain gestational age — correlating with different medical procedures for abortions earlier in pregnancy — the state has said the facility may apply for a waiver to bypass some of the requirements. The state has said that those and other accommodations belie assertions that the rules will result in clinic closure or loss of abortion access.

“[T]he licensure requirements will help ensure the safety, health, and wellbeing of abortion clinic patients. The department does not believe that the licensure requirements would limit (or ban) access to abortions or force facilities to be shut down,” the department wrote when it adopted the rules. 

Attorneys for the plaintiffs contended Tuesday that the waiver options are vague and don’t clearly outline which requirements can be skipped.

The filing also lays out an argument that the rules will prohibit providing abortion medication and treatment via telehealth because of requirements for in-person exams. Attorneys for the plaintiffs wrote that those tests and exams are “medically unnecessary” and that eliminating access to abortion via telehealth “conflicts with three separate injunctions” issued in other recent Montana abortion lawsuits.

During the rulemaking process, the state said the required exams could take place at other health care facilities that are more easily accessed by remote patients, rather than the clinic providing the abortion.

“There is no requirement in the proposed regulations, for example, that any physical examination, tests, or laboratory requirements be conducted by the abortion clinic. The department believes that such items could be conducted outside the abortion clinic, with the results sent to the abortion clinic in order to meet any regulatory requirements,” the department said.

State attorneys have not responded to the filing in court. Abbott, the judge currently assigned to the case, has not yet scheduled aa hearing.

Blue Mountain and All Families are part of other legal action about abortion restrictions at the state and district court level. Along with Planned Parenthood of Montana, the clinics and state attorneys are awaiting a response from the Montana Supreme Court about whether a law restricting the use of state Medicaid funds for abortions can take effect. 

Another lawsuit pending before the state’s high court deals with two laws passed in 2023 that are temporarily enjoined. One would require all abortion patients to receive an ultrasound to determine fetal viability and prohibit abortions after 24 weeks, unless to protect the life of the mother. Another would prohibit the most common type of abortion — dilation and evacuation — after the first trimester of pregnancy.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.