Judge strikes down a trio of abortion laws passed in 2021 as unconstitutional

In a ruling deeply critical of restrictions placed on abortion by the 2021 Montana Legislature, Yellowstone County District Court Judge Kurt Krueger struck down three laws that he said placed unreasonable and unconstitutional limits on abortions in Montana.

The decision converted what had been a temporary injunction on the laws into a permanent one, but it does not affect a raft of abortion restrictions that were passed by the 2023 Montana Legislature and are still being challenged in Montana’s courts.

The ruling, issued Thursday, struck down three laws that made obtaining an abortion more difficult in Montana, and Krueger said those restrictions had no basis in medical science, by the state’s own admission. He said the measures trample upon the more robust state constitutional protections, as well as the landmark 1999 decision that the right to obtain an abortion was part of the state’s right to privacy, enshrined in the Montana Constitution.

The Montana Attorney General’s Office, which defended the lawsuit, did not comment when asked on Thursday afternoon. It can appeal the decision to the Montana Supreme Court.

Planned Parenthood of Montana brought the lawsuit challenging House Bills 136, 140 and 171.

House Bill 136 bans abortions at 20 weeks, which is before the point of viability, “based on the legislative conclusion that the fetus is able to experience pain at that point during the gestation.”

House Bill 171 implemented a host of restrictions, including banning abortions via telehealth, imposing a 24-hour waiting period, requiring a patient to use a state form that had various notifications, and required an entirely new set of credentialing for medical providers who perform abortions.

House Bill 140 required providers to provide two forms of ultrasound and fetal heart tones, and imposed civil penalties for providers who don’t offer it.

In the ruling, Krueger struck down each of the bills one at a time, and said the state failed to present medical evidence to support its position, while also incorrectly tying Montana’s right to abortion to the U.S. Supreme Court’s Dobbs vs. Jackson Women’s Health decision, rather than to the Armstrong case in the state.

“Notably, Armstrong rejected the state’s attempts to regulate abortion, not on the basis that the procedure should be protected per se, but because a woman’s right to ‘decide up to the point of fetal viability, what her pregnancy demands’ implicates her right to ‘procreative autonomy.’ If the state can infringe on that autonomy ‘in favor of birth, then, necessarily it also has the power to require abortion,’ neither of which would be acceptable,” Krueger said.

The judge also rejected the idea that state officials have repeated that Montana courts should base their decisions about abortion because of the U.S. Supreme Court’s Dobbs decision, which returned the power to regulate abortion to each state.

“The state cites to Dobbs for its assertion that it has a compelling interest in ‘respecting and preserving human life, including prenatal life at all stages of development,’ regardless of determinations of viability. But Dobbs does not control here. Federal precedent is not binding on questions of state constitutional law,” Krueger said, pointing to a 2008 U.S. Supreme Court case.

Krueger said that while the state has the right to use its police power to regulate the health of its citizens, that also is not unlimited.

Krueger referenced other recent decisions that were hotly contested outside the area of abortion to demonstrate his rationale.

For example, the judge said that a challenge to Montana’s mask mandate brought by Missoula parents was upheld because “a public school policy requiring students to wear masks to prevent spread of infectious disease did not violate the right to make private health care decisions because the mask amounted to a public health intervention, not treatment” – the same way the state Supreme Court has ruled that requiring a motorcycle helmet is not a treatment for a head injury.

Krueger instead said that the State of Montana has failed to show a bona fide health risk presented by abortion.

“Courts are particularly wary of ideological or sectarian legislation presented as health care interests,” the order said.

The court found that Montana was able to present no evidence that 20 weeks of gestation for a fetus was medically viable, and Montana’s laws protect abortion up to the point of viability. But the new law, HB 136, bans abortion after 20 weeks because of the equally unsupported claim that a fetus can feel pain, Krueger said.

“Under the Montana Constitution, contrary to Dobbs, citizens retain their right to procreative autonomy up through the point of viability. The scope of any asserted state interest in protecting fetal life, therefore, depends on determinations of viability,” he wrote. “In this case, the law largely bans abortions at 20 weeks. It is undisputed that no fetus is presently viable at that point.”

Krueger also said that HB 136 “smacks of the ideologically motivated legislation condemned by the court in Armstrong,” and that it failed to show a compelling state interest. The court order demonstrated that no deaths from 2010 through 2020 were attributed to abortion, and only 0.3% of abortions in the state had a complication, so the state’s argument of medical risk was not substantiated.

Montana’s House Bill 171

Krueger also struck down HB 171, which included a “panoply” of rules governing abortion and telehealth.

“It violates the right to privacy by imposing numerous and severe burdens on patients and providers, which lack a basis in demonstrable medical science and do not apply to any other medical treatment,” Krueger wrote. “The state produced no discovery showing the risks of telehealth administered medication abortion versus in-person. Moreover, the state admits that Montana law does not expressly authorize or prohibit telehealth for any other medical provider.”

The court found that other provisions of the bill, like a 24-hour waiting period, were not justified by any medical science, and instead, served only to put more barriers in place; nor do other medical procedures require such a period.

The state, in the court order, said that it passed the law to ensure that women weren’t being forced into abortions, but Krueger pointed out during the court process, the State of Montana failed to produce any evidence that this was a problem, or even occurred.

The judge also took issue with several provisions of a state-designed form that women seeking an abortion must sign, including information that abortion is a reversible process. In his ruling, Krueger said that there’s very little medical evidence to support that claim, and requiring patients to sign such a statement may give the impression that an abortion provider agrees with that advice, which violates First Amendment protections for the provider to speak freely.

“There is scant evidence that abortion reversal is even possible, and no evidence of a legitimate, recognized health risk which ‘the promise’ of reversibility purports to solve, apart from the bare assertions that it furthers informed consent,” Krueger said.

The judge also counted more than 20 different, new and burdensome requirements placed on medical providers who offer abortion. Those requirements he described as expansive and only aimed at abortion providers because they offer the service, not because it’s medically necessary.

“Providers must be credentialed to handle any ‘adverse physical or psychological condition arising from the performance of an abortion,’ ” the judge said. “The law lists 29 such conditions, including renal failure, pelvic inflammatory disease, metabolic disorder, shock, subsequent development of breast cancer, any psychological condition, coma and death. The court claims no special medical expertise, but surely a doctor with credentials in all these reas would be among the world’s renowned medical experts.”

Krueger pointed out that part of the form would require the medical provider to advise that the abortion will “result in the death of an unborn child,” a statement he called “legally incorrect.”

“Armstrong recognizes the right to an abortion pre-viability, and plaintiffs only perform abortions to that point,” Krueger said. “Ipso facto, a patient exercising their protected right does so in relation to a fetus which is not viable and cannot be legally considered an ‘unborn child.’ Moreover, the implication would suggest to the average patient that they are ending a life tantamount to a criminal act. Such language is, at best, wrong and misleading.”

Krueger also said that Montana was violating First Amendment rights by pushing a particular viewpoint on abortion in the legislation.

“The requirement appears motivated by a particular perspective – the viewpoint that abortion is wrong. That statute is conspicuously absent of any requirement that providers discuss the potential risks of carrying a pregnancy to term,” Krueger wrote. “If the patient’s well-being and autonomy were truly the underlying motivations behind the law, why not require providers to discuss all aspects of the decision regarding one’s pregnancy, regardless of which decision a patient prefers?”

House Bill 140

House Bill 140 requires the options of both ultrasounds and fetal heartbeat tones, and also requires the health care providers to provide those services, even if they’re not medically warranted.

“It infringes the right to privacy by requiring providers to offer medical interventions which may violate their own best judgment, without basis in generally accepted medical consensus,” the judge said.

Krueger also said it treated pregnant patients who want to get an abortion differently than those who want to complete a full-term pregnancy.

“Because the ultrasound and fetal heart tone requirements do not correspond to bona fide health risks and only apply if a patient decides to terminate a pregnancy, the court is left with the strong impression that the law aims to advance the ulterior motive of discouraging abortion,” the court order said.

Statement from Planned Parenthood of Montana CEO Martha Fuller

“We are relieved that Montanans will no longer live with the threat of these harmful restrictions taking effect. But make no mistake, our fight continues. For years anti-abortion politicians at all levels of government have made banning abortion their number one priority, despite the current protection held in our state constitution. During the 2023 Montana legislative session, an onslaught of anti-abortion bills was introduced, passed, and signed into law, and PPMT is working hard to beat back these attacks and more. We will never stop working to ensure that all Montanans and those who are forced to travel here for care can access the care they need.”

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