The Montana Supreme Court on Wednesday upheld temporary blocks on abortion restrictions and rules passed in 2023 by the Republican-majority Legislature and Gov. Greg Gianforte’s administration while litigation unfolds.
In two separate rulings, justices found that state district court Judge Mike Menahan of Helena did not err when he issued preliminary injunctions in the cases last year. The Wednesday rulings, though not unanimous, prohibit the state from enforcing the laws and administrative rules while the lawsuits over their constitutionality proceed.
At issue in one of the cases are two laws, House Bill 544 and House Bill 862, and a set of health department rules that limit Medicaid funding for abortion. The other lawsuit deals with House Bill 721, a restriction on the most common type of abortion after the first trimester, and House Bill 575, which requires ultrasounds for all abortions and largely prohibits the procedure after 24 weeks of gestation.
Planned Parenthood of Montana, Center for Reproductive Rights, ACLU of Montana, Blue Mountain Clinic and All Families Healthcare praised the decision in a joint statement Wednesday.
“We are relieved that these medically unnecessary restrictions will not be a barrier for Montanans trying to access reproductive health care,” the statement said. “Politicians have no place in exam rooms and we are determined to defend Montanans’ right to privacy.”
In a statement Wednesday afternoon, Gianforte criticized the court’s conclusion in the Medicaid case but did not comment on the court’s ruling in the other case. Referencing the longstanding federal Hyde Amendment, Gianforte called the 2023 restrictions “common sense.”
“This extreme ruling means Montana taxpayers are forced to foot the bill for elective abortions,” Gianforte said. “[T]here is no constitutional right to public funding of a private choice.”
A spokesperson for Attorney General Austin Knudsen, whose office is representing the state in these cases, declined to comment.
The majority of each ruling deciphered whether the lower court was correct in blocking enforcement of the laws and policies, hashing out the standard of review and the considerations at play. But in each case, the five- and six-justice panels portrayed a range of opinions and sometimes sharp disagreements.
In the Medicaid case, Justice Ingrid Gustafson wrote the controlling opinion for the court and was joined by Justices Laurie McKinnon and Dirk Sandefur. The state’s argument that the Medicaid restrictions are “simple funding issues” that do not implicate constitutional rights, the justices found, “is not persuasive.”
“Though the state protests, the district court found preliminarily that these provisions are more than just funding judgments — they implicate the constitutional rights of Medicaid-eligible Montanans,” Gustafson wrote.
Justice Beth Baker wrote a special concurring opinion, joined by Justice Jim Shea, proposing a more limited ruling based on Montana’s constitutional privacy rights at this stage of litigation. The opinion bypassed further analysis of the parties’ arguments regarding equal protection rights.
Justice Jim Rice dissented, arguing that the district court’s preliminary injunction should not have been upheld to respect the Legislature’s ability to dictate its funding decisions.
“While public funding of abortion or other medical services can be considered beneficial and important, nevertheless, such financial programs are appropriation decisions that must, under the Constitution, be made exclusively by the Legislature, including the adoption of eligibility criteria for that funding,” Rice said.
McKinnon penned a separate commentary to critique Rice’s dissent, as well as Baker and Shea’s special concurring opinion.
“[T]he Special Concurrence has unnecessarily created a plurality opinion in an area of law that needs strong leadership from this Court,” McKinnon wrote about Baker and Shea’s reasoning. “Both the right to privacy and equal protection are weighty constitutional issues in our precedent and are relevant to and frequently arise in preliminary injunction proceedings. The Special Concurrence does a disservice to the parties and courts.”
In the case over HB 721 and HB 575, the court’s five-justice panel was more cohesive. Gustafson again delivered the majority opinion, joined by McKinnon, Shea and Baker.
The justices found that the lower court’s decision was correctly issued, as the abortion providers are likely to succeed on the merits of the case. The ruling also found that the state has failed to show that the bills, particularly the ban on dilation and evacuation procedures, are narrowly tailored to protect against a bona fide medical risk.
“[R]ather than preventing risk, the evidence of record thus far demonstrates HB 721 unnecessarily adds risk to a patient seeking a pre-viability abortion and infringes on the right to privacy guaranteed by the Montana Constitution,” the court said.
Justice Rice again dissented, arguing that the plaintiffs had met their burden on HB 721 but not HB 575, the ultrasound requirement and post-24-week restriction. The latter, Rice said, was an important tool for pinpointing fetal viability.
“The State’s interest in determining gestational age is not an isolated medical issue. HB 575 employs a recognized medical procedure to ensure satisfaction with the constraints upon abortions under Armstrong, that is, its limitation to pre-viability abortions,” Rice wrote. “Enjoining HB 575 leaves the State without a mechanism to ensure the law is followed.”
Litigation of both cases is set to proceed in Helena, the state’s first judicial district, in Judge Menahan’s court.
This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.