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Judge blocks enforcement of 15-week abortion restriction

The recently signed law was in effect for almost 48 hours.

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HELENA — A Helena district court judge on Thursday blocked Montana from enforcing a new law that bans the most common abortion procedure after roughly 15 weeks of pregnancy. 

The Republican-sponsored House Bill 721 was signed by Gov. Greg Gianforte Tuesday and took effect immediately — a feature not included in the abortion restrictions passed in 2021 that were eventually enjoined while litigation continues. 

Planned Parenthood of Montana, one of the abortion providers affected by the new law, filed a motion for a temporary restraining order about two hours after the governor’s office announced he had signed the bill. It was the group’s second attempt to block the law — the first motion, filed in April after the bill passed both chambers of the Legislature but before it was signed by the governor — was denied by a district court judge for being premature. 

The judge now presiding over the case, District Court Judge Mike Menahan, did not approve the motion for a temporary restraining order until just after 8:30 a.m. Thursday. That delay left the law in place for almost 48 hours despite Montana’s long-standing constitutional protections for pre-viability abortion, a legal precedent reaffirmed by the state Supreme Court last week.

Planned Parenthood of Montana and Blue Mountain Clinic, an abortion provider in Missoula, told Montana Free Press that the law did not disrupt patient services while it was in effect, but only by coincidence — neither clinic had patients scheduled for the temporarily banned dilation and evacuation procedures this week. 

Martha Fuller, CEO and president of the state’s Planned Parenthood affiliate, heralded Menahan’s decision in a Thursday statement.

“Every day Montanans are waking up to new restrictions on their bodily autonomy, confused about what care they can and cannot access in their own communities. As the Legislature and Governor continue to enact unconstitutional laws, Planned Parenthood of Montana remains committed to challenging them in court,” Fuller said. “We’re glad the district court has once again recognized the grave harm these anti-abortion laws will have on people seeking basic health care and stepped in to grant this much-needed relief.”

The new law tasks Attorney General Austin Knudsen with enforcing the restrictions on dilation and evacuation procedures. HB 721 allows for some exemptions for patients with an ectopic pregnancy or life-threatening health complication but threatens providers who violate the law with a felony punishable by a $50,000 fine and between five and 10 years in prison. 

Attorney general press secretary Emily Flower said in a statement Tuesday that the state opposed the temporary restraining order for what their office called “Montana’s Dismemberment Law.” Flower also denied that HB 721 bans abortion outright, instead saying it limits only a specific procedure. 

Attorneys for the state expanded on that argument in a legal brief filed Wednesday and proposed that patients could still terminate pre-viable pregnancies through inducing labor or having a doctor inject a lethal dose of medication to ensure fetal demise before a dilation and evacuation procedure. The filing said HB 721 should remain in effect because of the harm the banned procedures would allegedly cause to fetuses, pregnant patients and society in general. 

“The State has determined that this ‘brutal and inhumane procedure’ will ‘coarsen society to … vulnerable and innocent human life,’ and the Montana Constitution permits the State to prohibit the procedure in light of this judgment,” attorneys wrote, quoting a 2007 federal court case. “[T]he Dismemberment Law does not prevent a single woman from having an abortion. Instead, it prohibits a barbaric procedure that causes grievous pain to the unborn child and has substantial health risks for the mother.”

Medical providers in Montana who can provide dilation and evacuation procedures in hospital settings for pregnancy complications would have likely been impacted by the new law if it had remained in effect. 

Dr. Sarah Prager, a professor of obstetrics and gynecology at the University of Washington who tracks abortion restrictions nationwide, said recent studies have confirmed that abortion restrictions of any sort make patients less safe and increase risks of maternal mortality. She said the use of inflammatory language such as “dismemberment” and references to patient safety in HB 721 and the state’s legal filings are an effort to distract from the main goal of abortion bans. 

“This does not have anything to do with protecting pregnant people. Nor does it have anything to do with protecting embryos or fetuses. And they can use words that make it sound like abortion is barbaric because that is inflammatory and that’s what they’re aiming for, but abortion is health saving for pregnant people. Period. It decreases risk,” Prager said.

Dr. Timothy Mitchell, a maternal fetal medicine specialist in Missoula, said HB 721 would increase complications for his practice when dealing with high-risk pregnancies and hamstring other providers in similar situations. The judge’s decision to temporarily block enforcement of the law, he said, brought him a “much-needed sense of relief” while litigation continues.

“As an obstetrician and maternal-fetal medicine physician, it is my utmost priority to offer comprehensive evidence-based care options when assisting someone facing pregnancy complications. Regrettably, HB 721 limits my ability to do so, leaving me with no choice but to either refer patients out of state or provide care that may entail higher risks,” Mitchell said. “The distressing consequences of similar laws are evident in Idaho, where patients and the obstetrical community are already suffering greatly.” 

The Montana Hospital Association and Montana Medical Association declined to comment on the law Wednesday. 

A hearing in the case over HB 721 is slated for Tuesday, May 23, in Helena, according to Menahan’s Thursday order. The judge will also consider challenges to other new abortion restrictions on that day, including a ban on abortions after 24 weeks of pregnancy that requires an ultrasound before any procedure as well as a state administrative rule restricting how Medicaid funds can be used to cover the cost of medically necessary abortions. 

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