Montana Supreme Court rules that nurses, midwives may commit abortions

By Martin M. Barillas

Editor’s note. This is adapted from a post that appeared at LifeSiteNews.

HELENA— The Montana Supreme Court has upheld a district court ruling that allows nurse practitioners and nurse midwives to provide abortions, despite state law.

In the 4-3 decision in a divided court, Justice Beth Baker wrote for the majority by ruling that the plaintiffs, nurse practitioner Helen Weems and nurse midwife “Jane Doe,” had “presented sufficient evidence at this stage of the proceedings to support their claim that the statute bars their ability to perform the lawful medical procedures of medication or aspiration abortion and to complete appropriate training for the aspiration procedure.” Montana currently requires that advanced practice nurses practice only in areas in which they have achieved national certification.

Weems commits abortions in rural Montana, while the unidentified midwife has not yet received appropriate training. Susan Cahill, a licensed physician assistant, is co-owner of the abortion facility in Whitefish, Montana.

The Center for Reproductive Rights and the ACLU of Montana had filed the lawsuit in 2018 to dispute the Montana Abortion Control Act, which limits the practice of abortion to physicians and physicians’ assistants. The state Supreme Court upheld a ruling by district court judge Mike Menahan, who in 2018 blocked the Montana Abortion Control Act when he ruled that Weems and the unidentified midwife had been prevented from committing abortions. The state argued that the two medical professionals did not have standing to challenge the state law. The state Supreme Court ruled that the plaintiffs indeed have standing to challenge laws that affect patient outcomes.

In its appeal before the high court, the state said the nurses in the suit had no standing, while also asserting that the state district court had not established that irreparable harm would be caused by denying them the practice of abortion, nor was it seeking to preserve the status quo. The Supreme Court ruled that irreparable injury was possible and that the nurses are not barred by the Montana Board of Nursing from performing abortions. For its part, the district court in Helena must issue a final decision on whether the Board of Nursing can authorize the practice of abortion by Montana advanced practice nurses.

The ACLU and the Center for Reproductive Rights plan to ask the district judge to issue a permanent injunction that applies to all advanced practice nurses.

Writing for the three dissenters on the state Supreme Court, Justice Jim Rice argued, “I would conclude the record is insufficiently developed at this stage of the litigation to support enjoining a statute that has been in effect without challenge for over 10 years, and constitutes the status quo in the matter.”

Justice Rice continued:

Rather than providing evidence from the Board of Nursing, one of Plaintiffs’ main arguments is that APRNs [ Advanced Practice Registered Nurses] can provide some types of abortions as safely and competently as doctors, and that prohibiting them from doing so violates equal protection and a woman’s right to privacy and procreative autonomy in [the Montana Constitution]. However, the determination of whether APRNs can safely and competently provide abortions is clearly a question for the Montana Board of Nursing, who govern the practice of APRNs in Montana, and have the requisite medical training and knowledge to make such a determination. In contrast, the court lacks both the authority and the proper medical knowledge and training to decide this issue.”

“The court lacks both the authority and the proper medical training and knowledge to make such a determination,” Rice wrote in his dissent.

Justice Rice concluded that the state Supreme Court had made a decision on a medical issue that falls within the regulatory expertise of the Board of Nursing. He wrote that the court had mischaracterized the state government’s interest in ensuring that the proper authority had determined whether the medical professionals in question are licensed and competent to conduct abortion.

The World Health Organization, the American College of Obstetricians and Gynecologists, and the American Public Health Association have all argued to expand the practice of abortion in the early stages of pregnancy to medical professionals other than physicians. The World Health Organization says laws prohibiting advanced practice nurses from providing abortions in early stages of pregnancy are medically unfounded, the American Civil Liberties Union of Montana said. …

According to a statement by the ACLU, Center for Reproductive Rights attorney Hillary Schneller said, “There is simply no reason to prohibit qualified clinicians like our clients from providing abortion care.”

In 1995, the Montana legislature pass a law that allows only physicians to conduct abortions. In 1999, the Montana Supreme Court ruled against the law, claiming that it prevented women from receiving a legal medical procedure and was therefore unconstitutional. However, the Republican-majority legislature passed a measure to restrict abortion to licensed physicians and physician assistants, thus limiting access to abortion.

Abortion is available in Montana in Billings, Great Falls, Helena, and Missoula. Two abortion facilities closed down in 2013, leaving behind four in the state.

Last week, the Montana legislature passed three laws to restrict abortion, including the Montana Pain-Capable Unborn Child Protection Act.Gov. Steve Bullock, a Democrat, is expected to veto the measures.