High Court Upholds Montana Abortion Law Physician’s Assistant Says She Is Singled Out By The Legislation
In a decision that could have severe consequences for women in rural areas, the Supreme Court on Monday upheld a Montana law barring physician assistants from performing abortions.
At the same time, however, the court let stand an appeals court ruling that Utah’s blanket ban on abortions after the 20th week of pregnancy, with few exceptions, was unconstitutional.
In the Montana case, the high court, voting 6-3, reversed an appeals court decision that said the law might have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion,” which would make it unconstitutional under the court’s precedents.
Only one certified physician assistant performs abortions in Montana: Susan Cahill of Kalispell, who works under the supervision of Dr. James Armstrong. They were among a group of abortion providers who argued that the 1995 law targeted Cahill personally.
The court ruled that Montana’s legislation did not impose an “undue burden” on women seeking abortions, because Armstrong was always present when Cahill did the procedure. And so, the court majority said, “no woman seeking an abortion would be required by the new law to travel to a different facility.”
But Janet Benshoof, president of the Center for Reproductive Law and Policy and who represented Cahill, pointed out that she was one of fewer than a dozen abortion providers in the entire state.
“The fact that Cahill did the first-trimester abortions freed Dr. Armstrong to do the complicated procedures,” Benshoof said. “And he is the only physician in Montana - a state where no hospital does abortions - that will perform one after 18 weeks.”
Lynn Paltrow, vice president of Planned Parenthood in New York, said the decision “could be read as giving the green light to legislation whose sole purpose is to restrict access to safe abortion.”
Legal experts were disturbed that the court had seen fit to take the case, which had not been fully litigated in the lower courts. The court heard no arguments and issued an unsigned opinion.
“This decision reflects the court’s activism in reaching out and addressing an abortion issue without having been fully briefed,” said Louise Melling, associate director of the ACLU’s Reproductive Freedom Project.
Most states, including Illinois, have laws providing that only licensed physicians may perform abortions. So the direct, short-term impact of Monday’s ruling will be limited.
“Midwives and other licensed medical paraprofessionals have been winning more privileges across the country,” said Dr. Linda Hughey Holt, assistant clinical professor at Northwestern Medical School and director of the Institute for Women’s Health at Evanston Hospital. “The fact that the court chose this small area to draw a line in the sand reflects its anti-abortion activism.”
Anti-abortion groups, however, applauded the ruling. Judy Koehler, senior legislative counsel of Americans United for Life in Chicago, said the Montana decision “affirms once again that states may pass regulations with respect to abortion.”
“The court is concerned about the safety of women who have chosen this procedure,” Koehler said. “The abortion industry is constantly decrying back-alley abortions, yet they want non-physicians to perform them? It’s ludicrous.”
Benshoof, Cahill’s lawyer, said the case is not over yet. The justices have remanded it to the trial court, where Benshoof will argue that the law is an unconstitutional bill of attainder, a criminal law aimed only at Cahill. “They singled her out and made legislation just for one person,” she said.
In the Utah case, the Supreme Court declined to review a challenge to a 1991 law prohibiting abortions after 20 weeks except in cases where the life or health of the mother is in danger, or to prevent the birth of a severely deformed child. An appeals court struck it down, holding that it unduly burdens a woman’s right to choose to abort a nonviable fetus and that fetal viability must be determined by a physician on a case-by-case basis. Medical evidence shows that many fetuses can’t survive outside the womb until 24 weeks or later.