Abortion providers try to block 15-week restriction before it becomes law

A Helena judge on Monday denied a motion filed earlier today by Montana abortion providers seeking to block House Bill 721, a bill that would prohibit the most common procedure for terminating pregnancies after the first trimester.

The bill, which cleared its last vote in the Legislature April 7, has not yet been signed into law by Republican Gov. Greg Gianforte. But in court filings, attorneys for Planned Parenthood of Montana argued that the bill's immediate effective date would cause patients and providers "irreparable harm" by denying constitutional rights and criminalizing an available medical procedure after roughly 15 weeks of pregnancy.

"Banning one of the safest and most common methods of abortion will put lives at risk," Planned Parenthood of Montana CEO and President Martha Fuller said in a statement announcing the lawsuit. "Providers should be able to use their medical training, judgment, and expertise to provide the care that is best for each patient - without political interference or fear of criminal prosecution."

But in a handwritten ruling issued hours after the lawsuit was filed, First Judicial District Court Judge Kathy Seeley said the motion for a temporary restraining order was premature.

"No bill has been signed. Thus, no "law" to enjoin today," she wrote, according to a copy of the ruling shared with Montana Free Press. "Denied as premature."

In response to the judge's ruling, Fuller issued another statement saying Planned Parenthood of Montana challenged HB 721 "in order to make sure that no patients lost access to care" and that the organization "stands ready to re-seek relief once it becomes law."

An attorney for the organization later clarified that the lawsuit itself was not dismissed, as Montana Free Press previously reported. The judge's order only denied the motion to issue a temporary restraining order.

The Planned Parenthood affiliate's chief medical officer, Dr. Samuel Dickman, is the only other named plaintiff. The lawsuit names the state of Montana, Attorney General Austin Knudsen, the state health department and its director, Charlie Brereton, as defendants.

Supporters have said the bill is a legal and moral restriction on a specific medical procedure and does not constitute a sweeping ban on abortions.

If it takes effect, HB 721 would make medical providers who perform dilation and evacuation procedures liable for a felony punishable by a $50,000 fine and up to 10 years in prison.

Attorneys for the Planned Parenthood Federation of America, another party in the lawsuit, defended the decision to begin litigation before the bill becomes law.

"HB 721 already presents an immediate threat to Montanans' rights because it's been passed out of the Legislature and will be immediately effective upon signature by the Governor, and so it's necessary to file now to protect patients from being denied care," the attorneys said in a written statement provided through a Planned Parenthood spokesperson before Seeley's ruling was issued.

Gianforte spokesperson Kaitlin Price did not respond to a question Monday asking whether the governor intends to sign the bill when it arrives on his desk, but did criticize the speed of the legal action in an early afternoon statement.

"The fact that the bill hasn't even come to the governor's desk for his review and Planned Parenthood is already running to court tells Montanans everything they need to know about the far left, pro-abortion group and its extreme tactics," Price said.

A spokesperson for the attorney general's office, which will be defending the law in court, cast the lawsuit as a tactic meant to "interfere with the legislative process" in a statement before the judge's order.

"The Legislature and Governor should be free to conduct the people's work without the meddling of the courts. Planned Parenthood is not entitled to special treatment and must follow the same procedure as every other litigant. What's next - Planned Parenthood bringing a lawsuit to stop the Legislature from considering any bill that touches the topic of abortion?" said press secretary Emily Flower.

If it becomes law and is enacted, HB 721 would prohibit dilation and evacuation, or D&E, procedures, the most common and safest option for most abortions after 15 weeks of gestation. The bill text refers to the procedure as "dismemberment abortions," a nonmedical term.

The proposed restriction, the lawsuit argues, would effectively block patients from exercising a constitutionally protected right to access abortion beginning at the second trimester.

"By banning the safest, most common, and most accessible abortion procedure after approximately 15 weeks of pregnancy, the law effectively operates as a ban on abortions after approximately 15 weeks [after the last menstrual period]," the lawsuit states.

The bill includes an exception for terminating ectopic pregnancies and pre-viability abortions that are necessary for medical emergencies. But in a legal note attached to the bill earlier this session, legislative staff attorneys said the definition of "medical emergency" appeared so narrow as to be inconsequential.

"[D]espite the reference to medical necessity, it appears that HB 721 prohibits dismemberment abortion procedures at all stages of pregnancy in non-emergency and emergency situations," the note said.

The sponsor of the bill, House Speaker Matt Regier, R-Kalispell, argued in committee hearings that the bill applies only to a specific procedure and that abortion after the first trimester could still be available, including by cesarean section, if HB 721 is enacted. He reiterated that stance in a text message to Montana Free Press Monday.

"It is about limiting one type of horrific abortion procedure. This preemptive suing while a bill is still in the process shows the litigious and extreme nature of Planned Parenthood," Regier said.

This story was updated April 10, 2023, to include the decision of First Judicial District Court Judge Kathy Seeley. A prior version of this story was published prior to that decision. The article was later corrected to clarify Seeley's ruling, which denied the temporary restraining order motion but did not dismiss the case.