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New challenge to Montana abortion clinic licensing law

Montana State Capitol
Posted at 7:55 PM, Sep 05, 2023

HELENA — Two Montana abortion clinics have filed a lawsuit, seeking to put a hold on a new law requiring them to be licensed by the state. It’s just the latest legal action challenging new abortion regulations passed during the Montana Legislature’s 68th Session earlier this year.

Blue Mountain Clinic in Missoula and All Families Healthcare in Whitefish filed suit in Lewis and Clark County District Court, challenging House Bill 937. They argue the law in unfairly targeting them.

“What we're seeing here is lawmakers trying to single out abortion,” said Aileen Gleizer, a spokesperson for the two independent clinics. “They haven't been able to outlaw it, and so they're trying to come up with kind of fictionalized bureaucratic barriers to make it untenable for clinics to operate.”

The clinics were joined in the suit by Helen Weems, an advanced practice registered nurse who operates All Families and previously successfully sued the state to allow APRNs to provide abortions.

HB 937, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, says that no one can operate an abortion clinic without applying for and receiving a license from the Montana Department of Public Health and Human Services. It also directs DPHHS to establish rules for operating a clinic – including things like staff qualifications, required equipment, the “architecture or layout of an abortion clinic,” and a requirement for regular inspections.

The law does not apply to hospitals or outpatient surgical centers.

The clinics’ attorneys argued in their filing that there is no health or safety justification to put these additional requirements on abortion providers when other private health care practices don’t have to follow them.

“Other outpatient clinics—from primary care and gynecological clinics to dental and dermatology offices to birth centers, where pregnant people labor and give birth—operate without mandatory facility licensure,” their complaint said.

Instead, the clinics argued the regulations were unnecessary and interfered with the state constitutional guarantee of access to abortion services, as established by the Montana Supreme Court in the 1999 Armstrong decision.

“We know in Montana, abortion care is already subject to government regulations and oversight, our providers are already subject to regulation and oversight, and that abortion is one of the safest types of health care,” Gleizer said. “The risk of complications is less than 1%. So we really see these laws as an attempt to limit abortion care.”

The plaintiffs also said DPHHS hasn’t given them clear guidance yet about how to comply with the law’s requirements. Attorneys said in their filing that the department told them HB 937 would go into effect Oct. 1, but that they still haven’t come out with the administrative rules for licensure – leaving clinics in a period of legal uncertainty.

“Even under the most ideal circumstances, assuming that there are no delays or issues with an application, there will necessarily be a period during which HB 937 prohibits abortion care at clinics that do not obtain additional licensure, and during which licenses are not issued—all through no fault on the part of All Families or Blue Mountain,” the complaint said.

Through a spokesperson, DPHHS declined to comment to MTN on the lawsuit at this time.

The plaintiffs are asking the court for a temporary restraining order or preliminary injunction to stop HB 937 from going into effect Oct. 1.

In May, another district judge in Lewis and Clark County issued preliminary injunctions, blocking another series of abortion restrictions from taking effect while lawsuits challenging their constitutionality move forward.