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Montana judge blocks law limiting who can provide abortions

Lewis and Clark County Courthouse
Posted at 6:05 PM, Feb 28, 2022
and last updated 2022-03-01 09:49:12-05

HELENA — A district judge in Helena has blocked a state law that allows only physicians and physician assistants to perform abortions.

On Friday, District Court Judge Mike Menahan issued a ruling, saying the law was unconstitutional because it “violates Montanans’ fundamental right to privacy and procreative autonomy, by arbitrarily limiting their choice of health care providers for abortion procedures based on the provider’s title – rather than the provider’s qualifications.”

The case began four years ago, when two advanced practice registered nurses, or APRNs, filed suit, backed by the Center for Reproductive Rights and the ACLU of Montana. They argued that APRNs – nurses who have received advanced training, including at least a master’s degree – can be fully medically competent to perform abortions safely, so the state has no legitimate reason to exclude them.

Caitlin Borgmann, executive director of the ACLU of Montana, said they’ve seen a consensus from health organizations that nurses with extra training and certifications are as qualified as anyone to perform abortions, and that striking down the law would expand access in the state.

“We know that a lot of Montanans get their health care from health care providers who are not physicians, including advanced practice registered nurses,” she said.

The Montana Attorney General’s Office argued the state law was a reasonable regulation, intended to reduce health and safety risks from abortions. They suggested, without the law, it would be too easy for an APRN without the necessary experience to begin offering abortions.

However, Menahan said the state Board of Nursing’s existing rules were enough to make sure advanced practice nurses got the training they needed before performing abortions. He said the state hadn’t shown the Legislature would be better able to judge a provider’s qualifications than a medical licensing board.

“This ruling reaffirms that, here in Montana, we have a constitutional right to privacy, and that right to privacy encompasses the right to an abortion, and for no politician or law to be able to limit the intimate health care decisions of Montanans without a compelling reason,” Borgmann said.

“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, press secretary for Attorney General Austin Knudsen. “We will appeal the decision.”

Menahan’s ruling refers back to a 1999 Montana Supreme Court opinion, commonly known as the Armstrong decision. In that case, the court used similar legal justifications to overturn a law that prevented physician assistants from performing abortions. The Montana Legislature then amended that law to the version at issue now.

Knudsen has argued the Armstrong case was wrongly decided. Last month, he filed a motion, asking the Supreme Court to reverse its precedent.

Helen Weems, one of the APRNs who filed this suit, operates All Families Healthcare, a clinic in Whitefish. Weems worked with Susan Cahill, the physician assistant at the center of the Armstrong case. Cahill also operated All Families in 2014, when it was severely damaged by vandalism.

Weems has been able to provide abortions since 2019, after the Montana Supreme Court allowed a preliminary injunction on the state law to remain in place.