Montana judge declares 3 laws restricting abortion unconstitutional, including a 20-week limit

A Montana judge has declared that three state laws restricting abortion access are unconstitutional, including a ban on abortions beyond 20 weeks of gestation

Abortion Montana (Thom Bridge, Independent Record)

Three Montana laws restricting abortion access are unconstitutional, including a ban on abortions beyond 20 weeks of gestation, a state judge said in granting a motion for summary judgment filed by Planned Parenthood of Montana.

The 20-week ban and the two other laws passed by the Republican-controlled Legislature in 2021 — one that banned telehealth prescriptions of abortion medication and required a 24-hour waiting period after giving informed consent, and another that required providers to offer patients the option of viewing an ultrasound or listen to the fetal heart tone — had been blocked by a preliminary injunction that was granted in October 2021.

“We are relieved that Montanans will no longer live with the threat of these harmful restrictions taking effect,” Martha Fuller, president and CEO of Planned Parenthood of Montana, said in a statement. But she said the organization's efforts continue, noting Montana's Legislature in 2023 passed another slate of bills seeking to limit abortion access.

“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,” Fuller said.

District Court Judge Kurt Krueger's decision cited a 1999 Montana Supreme Court ruling that said the state Constitution's right to privacy includes a woman's right to obtain a pre-viability abortion from the provider of her choice. That ruling did not say at what point a fetus becomes viable, saying it is a complex concept determined by medical judgment and that cannot be reduced to a gestational age.

The state argued that the 1999 Armstrong ruling was wrongly decided and has tried unsuccessfully on several occasions to get the Montana Supreme Court to overturn it.

The state plans to appeal Judge Krueger's ruling, said Emilee Cantrell, spokeswoman for the Department of Justice.

“Attorney General Knudsen remains committed to protecting the health and safety of women and unborn babies in Montana,” she said in an emailed statement.

However, Thursday's ruling notes that: “Courts are particularly wary of ideological or sectarian legislation presented as healthcare interests.”

Montana's Armstrong ruling said that legal limits imposed under the “guise of protecting the patient's health,” but actually driven by “unrelenting pressure from individuals and organizations promoting their own beliefs" are impermissible and ”morally indefensible."

Abortion restrictions passed in Montana in 2023 that are being challenged include one that banned most dilation and evacuation abortions, the type used most often after 15 weeks of gestation; one to require prior authorization before Medicaid would pay for abortions, and one to say only physicians and physician assistants can perform abortions.

Montana's Supreme Court ruled in May 2023 that properly trained advanced practice registered nurses can also provide abortion care.