By Dave Andrusko
Insisting that it is not ruling on the merits of the case, the Montana Supreme Court on Tuesday upheld District Court Judge Michael Moses’ preliminary injunction that blocked three abortion laws passed by the Legislature in 2021 from taking effect while legal challenges play out.
The laws include House Bill 136—the Montana Pain-Capable Unborn Child Protection Act. This bans abortions performed on pain-capable unborn children who are 20 weeks gestational age. House Bill 140 offers the opportunity for abortion-minded women to view an ultrasound of their unborn child. HB171 requires informed consent for a woman undergoing chemical (or “medication”) abortions and have an in-person visit. It also prohibits women from accessing medication abortion through the mail and through telehealth.
The Montana Supreme Court “found that District Court Judge Michael Moses of Billings was right to rely on its 1999 Armstrong decision in granting the preliminary injunction,” Amy Beth Hanson reported. “The Armstrong decision holds that laws interfering with bodily autonomy violate the state Constitution’s right to individual privacy.”
The Department of Justice was not happy.
“The current standard for preliminary injunctions is so low that it’s not really a standard at all,” said Emilee Cantrell, spokesperson for the Department of Justice. “As a result, constitutional laws like these may be blocked for months – or even years – before courts ever decide cases on the merits.”
As for Armstrong, “Armstrong was wrong the day it was decided and its use in delaying these commonsense laws that protect the health and safety of Montana women makes that even more clear,” Cantrell said in a statement.
In October 2021, Judge Moses granted the preliminary injunction “in finding that based on first impression the laws appeared to be unconstitutional,” Hanson wrote.
Soon after that, Attorney General Knudsen and later Gov. Greg Gianforte “asked the state Supreme Court to accept additional briefings in the request to overturn the Armstrong ruling.”
That request was rejected.
“The court recognizes the potential implications of the Dobbs decision [overturning Roe] and the desire to afford full opportunity to be heard. But, for reasons explained in the opinion — which was in its final stages of review when the governor filed his motion — the appeal of this preliminary injunction is not the time for those arguments to be made and considered,” Justice Beth Baker wrote in the 5-0 ruling.
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