Montana health clinics continue to fight the state over abortion regulations

After a year and a half of legal maneuvering, on Oct. 9, the Montana Supreme Court upheld a district court ruling that allowed two independent clinics to continue providing abortion care. 

A new rule from the Montana Department of Public Health and Human Services would have required that clinics have a physician serve as medical director and that buildings meet the same requirements as ambulatory surgical centers. Abortion rights advocates say that such requirements are often introduced under the guise of improving patient safety, but in reality, they impose costly and medically unnecessary guidelines that often force clinics to shut down. 

The recent litigation dates back to May 2023, when Republican Gov. Greg Gianforte signed a number of restrictive abortion bills into law. In response, Planned Parenthood of Montana and two clinics filed suit against state agencies challenging the constitutionality of the laws. Helena District Court Judge Mike Menahan issued a temporary injunction barring the state from enforcing the new laws while litigation continued. The plaintiffs filed a second lawsuit later that year against the state, the public health department, and its director seeking a temporary injunction preventing enforcement specifically of the law on licensing requirements for clinics. 

Lewis and Clark District Court Judge Christopher Abbott in Helena issued a restraining order in that case, but the order still allowed the Department of Public Health and Human Services to write rules for clinic licensing. The department issued licensing rules on Sept. 20, 2024; they immediately went into effect.

On Oct. 8, All Families Healthcare filed to amend its complaint from 2023, arguing that the new rules would force the clinics to close, making it impossible for many patients to access abortion care in the state. 

Abortion is legal in Montana up to fetal viability, which is usually between 24 and 26 weeks of pregnancy. 

“It’s concerning because there’s so much confusion out nationally right now with the general population around their legal rights to abortion,” said Tess Fields, the executive director of the Blue Mountain Clinic, one of the plaintiffs in the case. “We have calls coming from Idaho, Wyoming, the Dakotas, and Texas, asking us, Is it still legal in Montana? Can I come there?”

Fields said it’s vital that independent clinics such as the Blue Mountain Clinic remain open for patients, particularly in a state like Montana, a destination for people from states such as Idaho, its neighbor to the west, where abortion is banned, with only extremely limited exceptions. 

Field said the Blue Mountain Clinic recently received a call from a woman in Idaho about a week before her scheduled appointment for an abortion. The woman called complaining of bleeding and cramps but was afraid to go to a local hospital or call a local doctor because, she said, she didn’t know what they would do.

“And so this woman drove seven hours, bleeding and in pain. She gets to the clinic; it’s an ectopic pregnancy. We have to rush her to the hospital. She has emergency surgery, and she was literally sitting in Idaho, a mile away from a hospital, and didn’t feel safe to go,” Fields said. “The Blue Mountain Clinic is a safe haven for people coming from out of state as well as for Montanans.” 

Fields said Gianforte’s administration has created “a real stressful environment for people who are trying to access care in Montana and beyond, and that definitely impacts the emotional health of our patients.”

In November, Montanans will have the opportunity to vote on Constitutional Initiative 128, a measure that would amend the Montana Constitution to “prohibit the government from denying or burdening the right to abortion before fetal viability.” It would additionally prohibit the government from punishing health care providers, patients, or anyone assisting someone in obtaining an abortion. 

Fields said voting “yes” on CI-128 is “absolutely critical” and would strengthen the state constitution so there would be no confusion. 

“Right now, abortion rights are protected under our privacy statute, and Montanans are taking this a step further to protect their health and their lives, so that interpretation of what privacy means is not left up to judges or elected leaders,” Fields said. “Of course, it may be challenged, but it will definitely make it more clear.”