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How Montana's new abortion restrictions got stalled in court

A Planned Parenthood location in Indianapolis, IN.
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A Planned Parenthood location in Indianapolis, IN.
Updated: October 11, 2021 at 6:52 AM MDT
Judge Micheal Moses granted Planned Parenthood of Montana’s request for a preliminary injunction on the three laws October 7th. But you should still listen to this story for the background on the debate over the laws.

A Yellowstone County District Court judge late last week temporarily blocked three new laws that restrict access to abortion just hours before they were set to go into effect. Montana Public Radio's Shaylee Ragar talked with Montana Free Press's Mara Silvers and the Montana State News Bureau's Holly Michels about what happened and what's still up in the air.

Montana Legislature passes abortion restrictions

Shaylee Ragar Holly, the Legislature passed several laws that restrict access to abortion in 2021 that Republican Gov. Greg Gianforte signed into law. Can you talk us through the significance of that?

Holly Michels Yeah. So these are bills that were either passed in previous legislative sessions or similar to ones that had passed. For the last decade we've had an increasingly Republican majority Legislature, but there's been a Democratic governor at the end of that that vetoed a lot of these bills. But with new Republican Gov. Greg Gianforte, like you said, he campaigned on signing this type of legislation. So I think what we saw last spring when these bills got signed wasn't really a surprise for people who watch politics pretty closely.

This lawsuit from Planned Parenthood is challenging four laws, but in the request for the preliminary injunction, they were looking to halt three of them from taking effect Oct.1, while the rest of this legal challenge plays out. So the first one, it would block abortions after 20 weeks gestational age. The second would require women to be informed of the opportunity to have an ultrasound before an abortion. A third law would stop doctors and patients from using the mail to send medication for medication abortions.

Planned Parenthood sues

Ragar What are the core arguments that the plaintiffs are making in this case?

Michels So there's a lot that Planned Parenthood is arguing here. In the request for the preliminary injunction, what they're saying is if any of these laws went into place while this is playing out, it would cause irreparable harm to women and providers. So one of the main challenges that Planned Parenthood is making here is they're saying a pre-viability abortion, the right to have that, is protected both in the state and federal constitutions. In Montana, there's a 1999 opinion from the state Supreme Court that makes that pretty clear here. Planned Parenthood is saying that if you wanted to override that, the state would have to show these new laws would survive what's called “strict scrutiny,” which is where you have to say there's this very real health risk to women that the state's stopping, and to prevent women from having bad outcomes. Another argument they are saying is that these laws come with pretty severe penalties for providers, and it's not totally clear what a provider would do to violate the law, and with that severe of a penalty would need clarity there.

From Texas to Montana

Ragar Access to abortion has been a major national news story lately, especially after a six-week abortion ban went into effect in Texas last month. Holly, what are the parallels here and how is the Montana case different?

Michels I'm glad you asked this question because my editor asked me this the day Texas happened, I was like, "I don't know if this is worth a story." And then I called people who advocate for access to abortion care in Montana, and they were saying, you know, we do have protections in Montana. Even if Roe v. Wade were to fall either through Texas or other challenges that the U.S. Supreme Court will see, we should have protections here in Montana. But what they were saying is that lawmakers see what's happening in Texas and see these laws advance, and that would maybe encourage them to bring more types of that legislation here in Montana that go that far. We haven't seen proposals go that far in Montana like a six-week ban, but seeing it happen in other states and the federal level would encourage that here, probably.

Irreparable harm

Ragar I want to get to last week. As you said, Planned Parenthood asked the court to temporarily block three of the four laws named in the suit before Oct. 1. Mara, you were in Billings at that hearing for that request. What was their argument? What's the urgency there?

Mara Silvers Yeah. So the lawyers who were representing Planned Parenthood just said that if these laws were to go into effect on Oct. 1, it would basically overhaul the landscape for abortion care in Montana. And specifically with all of the vagueness that Holly mentioned and some of the provisions that they were most concerned about, they said that it would penalize abortion providers, and for care that is currently within the legal scope of their practice. And what they wanted was to hold off on implementation until the merits of the case itself can actually be evaluated. If these laws were able to go into effect, they said, like Holly mentioned, they said that it would cause irreparable harm to patients and providers and not something that could be undone eventually if the laws are found to be unconstitutional.

Legislature vs. Judiciary

Ragar You were the first to report, Mara, that Attorney General Austin Knudsen, who's defending the state in the case, had filed a motion late last Wednesday asking District Court Judge Gregory Todd to recuse himself from presiding over the case. What was the reasoning behind that motion?

Montana Attorney General Austin Knudsen
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Montana Attorney General Austin Knudsen

Silvers Sure. So in the hearing on Thursday, Judge Todd had a bit of a sharp exchange with one of the lawyers representing the state. He referenced something that some public radio listeners might be familiar with, this ongoing fight between the state Legislature led by Republicans and the state judiciary over separation of powers. And that really got its start during the legislative session because of several bills that Republicans proposed that would change the way that the judiciary functions. So in this exchange, the lawyer for the state of Montana was making the point that the Montana Legislature has the ability to regulate medical services and medical care. And Gregory Todd posed a question that was something to the effect of, "like the way the Legislature is regulating the judiciary." And it was that question, that comment, that the defense attorney chose not to answer, that they later said showed bias on behalf of the judge against the state of Montana and was reason enough for his removal from the case.

A 'legal dumpster fire'

Ragar OK, so Attorney General Knudsen makes this motion late Wednesday, the laws are set to go into effect at midnight on Friday, so between Thursday and Friday. How would you describe what happened next, Mara?

Silvers I don't think that it's hyperbolic to say that the next 24 hours were a bit of a legal dumpster fire. I mean, there were so many filings made back and forth between the parties over whether or not this was acceptable.

At one point, the case was transferred up to the Supreme Court. But in the midst of waiting for that, that decision from the state Supreme Court, Judge Todd took himself off the case. And in doing so, Yellowstone County was able to draw a name out of a hat for the judge that was going to take over the case after that.

And as soon as that happened, the lawyers for Planned Parenthood re-upped their motion for a temporary injunction. But they added one other legal option for the next judge to consider, which was a temporary restraining order. And that has a time limit on it, as opposed to a preliminary injunction. A TRO, as they called it, just blocks the laws for 10 days until a preliminary injunction could be ruled on. That option is what the judge ended up deciding to take. So the new judge in the case, Judge Michael Moses, ruled on accepting a temporary restraining order for these laws on Thursday at 6 p.m., just six hours before these laws were set to take effect.

Ragar Is that a maneuver that tracks with how you've seen the attorney general operate since he's taken office?

Silvers Well, I would say we haven't seen him file this late of a motion to take a judge off a case. Usually when the Attorney General's Office has asked for a judge to be traded out, it's not explicitly because of alleged bias. Maybe it's just because they want a different judge. But I would say that the thing that does track with what we know about Attorney General Austin Knudsen so far is he is a bit unpredictable in his legal tactics. And I guess I would just say there's rarely a dull moment in covering that administration because he uses a lot of options that previously have not been used by attorneys general.

What's next?

Ragar Mara, what comes next?

Silvers So the ruling came in on Thursday evening. So by my count, that puts the 10th day of this temporary restraining order on Oct. 10, which is a Sunday. So Judge Moses has until then to issue his ruling on a preliminary injunction. From there, anything could happen. If he does grant Planned Parenthood and the other plaintiffs a preliminary injunction in this case, that could be appealed up to the Supreme Court by the Attorney General's Office. If he doesn't grant a preliminary injunction, my understanding is that also could be appealed up to the Supreme Court, but also the judge could grant a preliminary injunction at any point. So, hypothetically, it is possible that these laws could be in effect for a week and then they could be blocked and stalled. Really, it's any number of legal options that are on the table from here on out.

Ragar That's lots to keep track of. I'm sure we'll be in touch about this more. Mara, Holly, thanks so much for being here.

Michels Thanks, guys.

Silvers Yeah, thanks for having us.

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