Montana Supreme Court hears challenge in law limiting who can perform abortions

By Bridget Sielicki

The Montana Supreme Court heard arguments on December 14 in a challenge to a ruling from earlier this year which determined that a state law stipulating that only medical doctors can commit abortions is unconstitutional.

In February, Judge Mike Menahan permanently voided a 2005 state law that prohibited non-physicians — like midwives and nurse practitioners — from committing abortions. The action came after a 2018 lawsuit filed by a nurse, Helen Weems, and an unnamed midwife, who argued that they had a right to commit abortions, even though they weren’t doctors.

Though the law was voided, the Montana Department of Justice appealed to the state Supreme Court. In defending the law, Montana Assistant Solicitor General Brent Mead argued that it does not limit abortion in any way, but is simply a matter of the state doing its duty in overseeing medical professionals. He also noted that advanced practice nurses are not authorized to perform surgery, and many abortions are surgical procedures.

“Like other medical procedures, the state may regulate who may perform abortions without infringing on a patient’s right to receive a pre-viability abortion,” he told the court. “Plaintiffs get it wrong when they suggest the state doesn’t have a role in setting such scope-of-practice rules.”

“Fundamental rights do not attach to seeking medical care from unlicensed providers,” he added.

Hillary Schneller from the Center for Reproductive Rights, who argued on behalf of the plaintiffs, countered that it is a private choice for a woman to decide who her abortionist will be. “Medical decisions must often and necessarily be made in partnership with a health care provider. And so it is critical that the individual has control over who that provider is to fully effectuate their right to make this decision and to access care,” Schneller said.

In his arguments, Mead also pointed out that doctors are equipped to provide emergency medical care if a woman starts hemorrhaging following an abortion, but nurses would have to dial 911 and transport the patient to the hospital if such a situation arises. These situations are not simply anecdotal; though the mainstream media is often silent on such tragedies, Live Action News has documented many instances of abortion injuries resulting in 911 calls and ambulance transport to a local hospital.

Abortion includes many potential risks, including infection, hemorrhaging, damage to the cervix and uterus, scar tissue, damage to the uterine lining, and even death. When the procedure is performed by someone who is not a medical doctor, women are placed in even greater danger.

Following the arguments, Justice Mike McGrath told the attorneys the court would “take this matter under advisement and issue an opinion in due course.”