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Attorney General Knudsen asks state Supreme Court to reinstate laws that protect health and safety of women considering, seeking abortions

  • Lower court bungled preliminary injunction standard and abused its discretion when it blocked enforcement of laws Gov. Gianforte signed last year
  • The three enjoined laws “unquestionably enhance the health and safety of Montana women”
  • Filing also asks Supreme Court to overturn its flawed 1999 Armstrong decision, which created a state constitutional right to abortion

HELENA – Montana Attorney General Austin Knudsen is asking the state Supreme Court to vacate a district court order blocking the enforcement of three state laws that protect the health and safety of women who are considering or seeking an abortion. The lower court bungled the preliminary injunction standard, wrongly subjected each of the new laws to “strict scrutiny,” and manifestly abused its discretion by failing to properly consider and assess the State’s evidence and arguments – each on its own justifying a Supreme Court reversal.

Just before they were set to take effect, a Montana district court granted Planned Parenthood’s request for an injunction blocking three commonsense, democratically enacted laws that guarantee women do not undergo medically risky late-term abortions in the sixth month of pregnancy or beyond, are not prescribed dangerous chemical abortion drugs without sufficient medical guardrails, and are offered the opportunity to see an ultrasound or hear the heartbeat of their child before undergoing an abortion.

The district court’s decision amounts to trapping pregnant Montana women considering abortion in now-outdated obstetrical care standards and ties the standard of care they receive to abortion providers’ revenue-maximizing business practices.

“All three laws unquestionably enhance the health and safety of Montana women. And they represent basic regulations of the practice of medicine—bread-and-butter exercises of [state government],” the State of Montana’s appeal, which was filed yesterday, reads. “But Planned Parenthood’s business is abortion, and these laws require modest changes to its business practices. So Plaintiffs asked the courts to do what they couldn’t through the legislative process—save them the trouble of providing better care to Montana women.”

In reversing the district court’s order, the state Supreme Court should also overrule the 1999 Armstrong precedent. This decision invented from whole cloth a state constitutional right to elective abortion even though the framers of the Montana Constitution were perfectly clear that decisions about abortion policy are to be firmly in the hands of the Legislature.

The sweeping language of the Armstrong decision has proven unworkable in practice as it seemingly calls into question every regulation of every medical provider. While the Montana Supreme Court has since narrowed its scope, challenges to basic public health and safety regulations will continue to arise “until the Court overrules Armstrong’s unqualified language once-and-for-all.”

The Pain-Capable Unborn Child Protection Act (House Bill 136) was carried by Representative Lola Sheldon-Galloway from Great Falls. It prohibits an abortion of an unborn baby capable of feeling pain, which the Legislature determined occurs when the gestational age of the unborn child is 20 or more weeks.

The purposes of HB 136 include protecting the lives of unborn children, preventing procedures which will cause them grievous pain, decreasing the serious risks to women associated with late-term abortions, and maintaining the integrity of the medical profession.

House Bill 140, which was carried by Representative Amy Regier of Kalispell, enhances informed consent by requiring a person performing an abortion to inform the woman of the opportunity to view an ultrasound and listen to her baby’s heartbeat. It doesn’t require the woman to view the ultrasound or listen to the fetal heartbeat—the provider must simply give her the option.

Offering an expectant mother the opportunity to view an ultrasound or hear the fetal heartbeat, both of which she is free to decline, empowers her to more fully understand the procedure that she is choosing to undergo. The district court decision would have women make this decision based on the limited information the plaintiffs – who have a financial motive to perform as many abortions as possible – wish to share.

The Abortion-Inducing Drug Risk Protocol Act (House Bill 171), which was carried by Representative Sharon Greef of Florence, protects the health and welfare of women considering chemical abortions. It establishes a protocol for obtaining informed consent 24 hours before the abortion drugs are administered and requires that qualified medical practitioners only dispense chemical abortion drugs in person after a physical examination and for the practitioners to schedule a follow-up visit.

In particular, this law promotes the health and safety of Montana women in rural communities, where chemical abortions are the most dangerous because they lack access to facilities that can manage complications. The district court ignored these risks, stating in its decision that a video chat would suffice for these women suffering complications from a chemical abortion.

Click here to read the brief.