Judge temporarily blocks new abortion laws, but the legal fight has just begun

A state judge has temporarily blocked new restrictive abortion policies from going into effect while their constitutionality can be hashed out in court. That order came after a 4-hour hearing in which both sides made their cases for or against the block. Montana Public Radio’s Shaylee Ragar was in the courtroom and joined Austin Amestoy to break down what happened.

Austin Amestoy Shaylee, Judge Mike Menahan agreed with the plaintiffs' argument that a temporary block on these new policies would not change anything for the state, as these restrictions have not gone into effect, but the block would prevent drastic change to the legal landscape for abortion providers. Let’s start with those providers, who are they?

Shaylee Ragar Montana’s three abortion providers are All Families Healthcare in Whitefish, Blue Mountain Clinic in Missoula and Planned Parenthood of Montana, which operates five clinics. All three joined together to challenge a new anti-abortion rule from the state health department, and Planned Parenthood of Montana, with help from its national organization, has filed an additional lawsuit over new bills recently signed.

Austin Amestoy OK, remind us: How would these policies, which are now blocked for the time being, change access to abortion?

Shaylee Ragar A new state health department rule restricts Medicaid coverage of abortion and which providers can get reimbursed. That policy has been challenged by all three providers in the state.

Four new laws challenged by Planned Parenthood would ban abortion at 24 weeks and require ultrasounds before all abortions; ban dilation and evacuation procedures, which is the most common method to terminate a pregnancy after 15 weeks; and further restrict public dollars from going to abortion, like through Medicaid coverage.

Austin Amestoy What arguments did we hear providers make that eventually convinced the judge to block the bills?

Shaylee Ragar Sure, but first I want to be really clear – Tuesday’s hearing was solely about whether these policies should be temporarily blocked in court while two lawsuits play out. There will be plenty more opportunity for both sides to present more evidence, but this is the starting point.

Abortion providers painted a picture of the irreparable harm they say these restrictions will cause.

Dr. Sam Dickman is the chief medical officer for Planned Parenthood of Montana. He told the story of a woman who lived in a rural area, had three kids to take care of and who didn’t have a car. Under these new policies, she would have to get an ultrasound before getting mailed medication for an abortion, which he said would have been impossible.

In an interview after the hearing, Dickman said patients face negative outcomes when they can’t access abortion.

“Patients who can’t access abortion and who are forced to continue pregnancies end up having far worse mental health, physical health and financial and social outcomes.”

The lawyers for the providers pointed to three Supreme Court precedents based on the state constitutional right to privacy that all say the state must identify and prove there’s a medically acknowledged, bona fide health risk to limit access to abortion, which providers say the state has failed to do.

Austin Amestoy What arguments did the state’s defense attorneys make to allow the policies to stay in place?

Shaylee Ragar They really focused on trying to point out ways that abortion is still accessible and why the regulations are necessary. The attorneys didn’t disagree that prior Supreme Court precedent is relevant to the case, but argued the state does meet the test set by those rulings. For example, they also called a doctor to the stand who said he did not perform abortions, but did treat miscarriages, which entails the same procedures. The doctor said ultrasounds are the gold standard for determining gestational age and that they detect important health risks, like an ectopic pregnancy. So the defense is saying they have a bona fide health reason to require ultrasounds.

Austin Amestoy And how did they address the other restrictions for low-income patients on Medicaid?

The defense called Montana’s Medicaid director to the stand, and he talked about the state’s responsibility to implement rules that prevent fraudulent use of public dollars. They argue providers haven’t always properly documented the medical necessity of abortions.

The state’s attorneys also said women can find other ways to pay for abortion services outside of Medicaid and that there are alternatives to dilation and evacuation abortions after 15 weeks.

Abortion providers pushed back against both of those points, saying Medicaid recipients are inherently low-income and unable to afford abortions, and that the alternatives to dilation and evacuation procedures carry greater risks to patients.

Austin Amestoy Shaylee, thanks for your reporting.

Shaylee Ragar Thank you, Austin.