Planned Parenthood of Montana; All Families Healthcare; Blue Mountain Clinic; Samuel Dickman, M.D.; and Helen Weems, APRN-FNP v. State of Montana, et al.

Case update: On May 1, a Lewis and Clark County District Court judge issued a temporary restraining order blocking the new rule from going into effect while litigation continues.

On April 28, 2023, the Center for Reproductive Rights filed a lawsuit challenging a new rule by Montana’s Department of Public Health and Human Services (DPHHS) that would have effectively banned Medicaid members from accessing abortion care in the state.

In Montana, Medicaid is required to cover “medically necessary” care, including abortion care. If enforced, however, the new rule would only allow Medicaid-eligible Montanans to obtain abortion care from physicians, eliminating their access to care from advanced practice clinicians, physician assistants, nurse practitioners, and nurse midwives. Medicaid has long covered abortion care from a wide range of non-physician providers, who provide the majority of abortion care in the large, rural state.

In addition to limiting Medicaid patients’ options for care, the new rule would impose an unnecessary physical exam requirement on Medicaid-eligible Montanans, eliminating their access to telehealth care entirely. Medicaid patients who are already strained financially would thus be forced to make at least one unnecessary visit to a clinic, requiring many to miss work and make costly logistical arrangements for travel and childcare.

Further, the new rule would force patients to obtain prior authorization and submit various documentation to the State to determine whether Medicaid will cover their care, allowing the State to deny coverage even for patients who overcome all other barriers. Moreover, the rule restrictively redefines what Medicaid considers “medically necessary” when it comes to abortion, and abortion alone, singling out low-income Montanans seeking abortion care and their providers for differential treatment.

The Center filed this lawsuit on behalf of the two independent clinics in Montana: All Families Healthcare and Blue Mountain Clinic. About half of the patients these clinics currently see for abortion care rely on Medicaid. Under the rule, all or nearly all of them will be unable to access care.

Case Arguments

In the lawsuit, the Center and its partners argue that the new rule undermines the Montana Constitution’s explicit guarantee of privacy, as well as the Montana Administrative Procedure Act.

Specifically, the new rule:

• Contradicts the 1999 ruling by the Montana Supreme Court, which held that the state constitution’s right to privacy protects the right to access abortion from a chosen provider.
• Violates Medicaid patients’ right to informational privacy by forcing providers to divulge sensitive and unnecessary patient medical information to DPHHS.
• Violates the Montana Constitution’s equal protection guarantee.
• Discriminates against Medicaid members based on their sex, the type of care they seek, and the way they exercise their fundamental right to reproductive autonomy and to access pregnancy care.
• Violates clinicians’ own equal protection rights by discriminating against Medicaid providers who provide abortions and non-physician providers.

Plaintiff(s): Planned Parenthood of Montana; All Families Healthcare; Blue Mountain Clinic; Samuel Dickman, M.D.; and Helen Weems APRN-FNP, on behalf of themselves and their patients

Center Attorney(s): Adria Bonillas, Jen Samantha D. Rasay, Hillary Schneller

Co-Counsel/Cooperating Attorney(s): Erin M. Erickson, Bohyer, Erickson, Beaudette, and Tranel P.C.; Akilah Deernose and Alex Rate, ACLU of Montana

Defendant(s): State of Montana; Montana Department of Public Health and Human Services; and Charlie Brereton, Director of the Montana Department of Public Health and Human Services

April 28, 2023	Montana publishes a new administrative rule that would effectively ban Medicaid members from accessing abortion care in the state. That same day, the Center files a lawsuit aiming to block the rule from taking effect.
May 01, 2023	A Lewis and Clark County District Court judge issues a temporary restraining order blocking the new rule, which was to be enforced starting May 8.
May 12, 2023	Lewis and Clark District Court hears arguments on providers’ request for a preliminary injunction.

• Verified Complaint and Petition for Declaratory Relief, Permanent Injunction, and Temporary Restraining Order, 04.28.23
• Temporary Restraining Order and Order Setting Hearing, 05.01.23

• Center and Partners Sue to Protect Abortion Access for Montanans on Medicaid, 04.28.23
• Joint statement from leaders from Planned Parenthood Federation of America, Center for Reproductive Rights, and ACLU of Montana on behalf of All Families Healthcare, Blue Mountain Clinic, and Planned Parenthood of Montana, 04.28.23
• Medicaid Rule Limiting Abortion Access in Montana Is Blocked After Lawsuit by the Center and Partners, 05.02.23