Montana abortion businesses won’t be held to new state licensing requirement – for now

Montana voters passed Initiative 128 this month, expanding the state’s already liberal abortion law by allowing abortion up to birth. Now, a judge has ruled that new abortion facility licensing requirements won’t be enforced in the state — for now — but his order includes misinformation.

House Bill 937 from the 2023 Montana Legislature requires abortion facilities to be licensed under the state. They are currently only subject to federal regulations and a licensing board. Abortionists in Montana argue that adding a required license under the state would mean abortion businesses face tougher requirements than private medical practices, which are not required to be licensed by the state health department.

All Families Healthcare, Blue Mountain Clinic, and abortionist Helen Weems argued that the new requirements were “onerous and unnecessary” and would make it harder for abortion businesses to remain open. Arguing the case in favor of the abortion businesses were the Center for Reproductive Rights, the ACLU of Montana, and the law firm Dechert LLP.

In September 2023, Lewis and Clark County District Court Judge Christopher Abbott, issued a restraining order to temporarily block the law because the Department of Public Health and Human Services (DPHHS) had not yet finalized the new licensing requirements that it would impose on abortion businesses. At that time, the parties agreed that once the requirements were determined, the abortion businesses could bring a legal challenge against them.

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The requirements were finally published in September and include a $450 annual licensing fee, that all applicants be of “reputable and responsible character,” and that background checks of employees are kept on file. With the original restraining order set to expire on November 19, Abbott heard arguments on November 8 and extended that temporary block of the law.

Abbott agreed with the abortion facilities, saying that Montana protects abortion based on the 1999 case Armstrong v. State in which the Montana Supreme Court found both that a right to privacy includes abortion and that abortions can be committed by medical workers other than doctors. In addition, Montana voters voted earlier this month to make abortion a state constitutional right.

Abbott determined that abortion businesses are “not generally considered healthcare facilities…subject to DPHHS regulation.”

“Whatever one’s views may be, the law in Montana is well-established. Women have a state constitutional right of access to pre-viability abortions from a qualified medical provider of their choice,” Abbott’s order said. ” … Moreover, voters recently affirmed the core holding of Armstrong when they approved the addition of an express right to abortion access in the Montana Constitution.”

It continued, “The status quo is what has been the case for decades: while abortion providers are subject to applicable federal regulation and regulation by their licensing board, they are not generally considered healthcare facilities subject to a licensure requirement or any DPHHS regulation. HB 937 represents a departure from that status quo.”

The order, however, uses misinformation to make the case in favor of abortionists, including the false claims that abortion is safer than childbirth and that the abortion pill is as safe as Viagara. These claims have been repeatedly proven false.

Abbott determined that the state has not yet provided adequate justification for attempting to regulate abortion facilities differently than it does private medical practices. His order will remain in place as the lawsuit plays out.

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