Update: In a brief filed on May 1, the State noted in a footnote that a separate notice to providers indicated the rule would not be enforced until Monday, May 8.
Today, the Center for Reproductive Rights and its partners filed a lawsuit challenging a Montana administrative rule that would effectively eliminate access to abortion for most Montanans insured through Medicaid.
The Center and its partners are asking for a temporary restraining order to block the rule, which would take effect this Monday, May 1.
The lawsuit, which was filed in district court in Lewis and Clark County, argues that the rule by the state’s Department of Public Health and Human Services (DPHHS) violates the Montana Constitution.
In Montana, Medicaid is required to cover “medically necessary” care, including abortion care, and covers that care when it is provided by physicians as well as advanced practice clinicians, including physician assistants, nurse practitioners, and nurse midwives, who provide the majority of abortion care in the large, rural state.
New Rule Would Create Numerous Barriers and Immediate Chaos
The new rule would restrict the provision of abortion for Medicaid-eligible Montanans to physicians—eliminating access to most abortion providers in the state for people with low incomes. It would also require Medicaid members seeking abortion care to undergo an unnecessary physical exam—eliminating access to medication abortion via telehealth for Montanans on Medicaid. Those who are already strained financially would be forced to make at least one unnecessary visit to a clinic, and to miss work and make the attendant logistical arrangements for travel and childcare, which may be insurmountable.
For those that do manage to reach a physician and make an in-person visit, the rule requires patients to obtain prior authorization and submit various documentation to the State to determine whether to approve or deny coverage for abortion care. And the new rule narrowly redefines “medically necessary” when it comes to abortion, and abortion alone. So, the State may deny Medicaid coverage for abortion care even for those who are able to overcome the various other obstacles the rule imposes. Individually, and together, these aspects of the rule take away from the most vulnerable Montanans the right to make critical decisions about their health and their lives and forces them to stay pregnant and give birth.
“This harmful rule is set to take effect in just one business day. Enacting laws with immediate or near-immediate effective dates is part and parcel of anti-abortion lawmakers’ efforts to create chaos and upend the lives of patients and providers overnight,” said Hillary Schneller, senior staff attorney at the Center. “There is no valid reason to roll back Montana Medicaid’s abortion coverage rules—which have governed for nearly two decades—and certainly no reason to do so with one business day’s notice.”
A joint statement from leaders from the Center, Planned Parenthood, and ACLU of Montana on behalf of All Families Healthcare, Blue Mountain Clinic, and Planned Parenthood of Montana said:
“Today, we are asking the Court to halt a dramatic and rushed effort on the part of the State of Montana that would essentially cut off abortion access for Medicaid patients in the state. Not only does the rule threaten the health and safety of the very Montanans DPHHS purports to protect, it also violates their rights under the state’s own constitution. This is just another concerted effort to take away Montanans’ fundamental rights and restrict access to essential health care.” Read the full statement here.
The plaintiffs in this case are being represented by the Center; the Planned Parenthood Federation of America; the ACLU of Montana; Bohyer, Erickson, Beaudette, and Tranel P.C.; Edmiston & Colton Law Firm; and Graybill Law Firm.
The Center represents All Families Healthcare and Blue Mountain Clinic, both independent clinics in Montana. Approximately half of the patients at these clinics seeking abortion care rely on Medicaid.
Lawsuit Argues Rule Violates Montana Constitution’s Rights to Privacy and Equal Protection
The Center and its partners argue that the DPHHS’s new rule violates the Montana Constitution. The rule conflicts with the state constitution’s explicit guarantee of privacy, which the Montana Supreme Court has held protects the right to access abortion and to access abortion from a chosen provider.
The rule also violates the Montana Constitution’s equal protection guarantee by discriminating against Medicaid members based on the way they exercise their fundamental right to reproductive autonomy and to access pregnancy care. Medicaid will cover care for people who experience a miscarriage, or continue their pregnancy and give birth, but will deny coverage for many people seeking abortion care. Further, the rule violates clinicians’ own equal protection rights and discriminates against advanced practice clinicians.
In Montana, abortion is legal before viability. The state’s highest court recognized “procreative autonomy” under the Montana Constitution, protecting the right to abortion. In November 2022, voters rejected LR-131, a referendum that mischaracterizes abortion, furthers abortion stigma, and could have criminalized medical professionals.
The Center is currently challenging another Montana law that prohibits advanced practice registered nurses from providing abortion care, which has been permanently enjoined on privacy grounds. It has litigated several cases in Montana, including the landmark 1999 case that led to the Montana Supreme Court recognizing the Montana Constitution guarantees the right to abortion, as well as a 1995 case which held the state Medicaid program must cover medically necessary abortion care.
Montana enacted numerous abortion restrictions in 2021, although all are temporarily enjoined. The State is set to enact another host of abortion restrictions in this year.
The Center has challenged several other similar restrictive Medicaid laws, including a 2014 Alaska state law and regulation that would have severely limited Medicaid coverage of abortions for low-income patients in Alaska. In 2019, the Alaska Supreme Court struck down the law and regulation for violating the equal protection guarantee of the Alaska Constitution.