Judge grants restraining order blocking abortion licensure requirement from taking effect
Abbott’s restraining order only applies to Section 2(1) of the bill, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls. The law states: “A person may not operate or advertise the operation of an abortion clinic unless the person is licensed by the department.”
Abbott interpreted that as “plainly and unambiguously” prohibiting abortion clinics from operating without a license, he wrote. He said the plain language of the statute means that as of the bill’s effective date, Oct. 1, abortion clinics cannot operate unless they are licensed by DPHHS.
Abortion clinics are not currently licensed in Montana, though their providers are, and Abbott noted in his order there is no way for them to obtain such a license before Oct. 1.
“Before licenses can be issued, the Department must first promulgate rules. The department, however, has neither adopted nor even publicly proposed temporary or final rules to implement HB 937, nor has it otherwise given providers guidance on how they can avoid violations of Section 2(1) in the interim,” Abbott wrote.
Abbott also cites the landmark Armstrong v. State decision and the more recent Weems v. State decision, which affirmed the right to abortion under the right to privacy, saying that “laws significantly inhibiting abortion access are presumptively unconstitutional and can only be enforced if they withstand strict scrutiny.” Strict scrutiny is the highest standard of judicial review.
He said the decisions in Armstrong and Weems, the latter of which found limiting the pool of abortion providers would significantly interfere with a person’s right to privacy, “are controlling authority that remains good law and binds this court.”
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Abbott wrote that the providers had established an actual controversy in the suit, that a restraining order was in the public interest, and that the plaintiffs were likely to succeed in their argument that the section of the new law “violates the right to individual privacy in the absence of a means of obtaining a license.”
But he said further questions about whether the licensure requirement is otherwise unconstitutional would not be “confronted” until both sides present their arguments at the hearing on the preliminary injunction request next month.
Abbott wrote that unless the section of law is enjoined, the providers would be putting themselves at legal and financial risk by operating without a license.
“Abortion services are necessarily time-sensitive in nature, particularly as abortions become more invasive as the pregnancy continues,” he wrote. “A chill on abortion services because of legal uncertainty over the effect of HB 937 causes the clinics and their patients irreparable injury for preliminary injunction purposes.”
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Gleizer, with Blue Mountain Clinic, said the clinic and others in Montana have for decades been safely providing abortion care in Montana subject to government regulation and oversight. She sees the litany of abortion restrictions passed again this past session as an ongoing attack on women’s health care by the government.
“We have seen it for what it was from the beginning, which is a false narrative of safety,” she said. “When, as with other anti-abortion bills, it’s about control and ultimately banning abortion.”