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The Montana Supreme Court (copy)

The Montana Supreme Court listens to oral arguments in December 2018.

In a 4-3 ruling, the Montana Supreme Court said nurses in Montana could continue to provide early term abortions while a lawsuit plays out in court.

The order, filed Friday, comes after two advanced practice nurses sued the state in 2018, saying a Montana law limiting who could provide abortions only to licensed physicians and physician assistants violated a woman's right to privacy and severely limited access to abortions in a geographically large and rural state.

A Helena District Court judge found in favor of the nurses last year, putting a block on the law that prevents nurses from providing abortions. The state of Montana, under Attorney General Tim Fox, appealed the decision to the state Supreme Court.

The state's appeal, in part, said the nurses who filed the suit didn't have standing. The appeal also claimed the District Court did not establish irreparable harm nor was it seeking to preserve the status quo.

The Supreme Court disagreed, saying irreparable injury was possible and that the nurses are not barred by the Montana Board of Nursing from performing abortions. The Helena District Court still must consider and issue a final decision on whether Board of Nursing rules would authorize abortion services for Montana advanced practice nurses.

“This ruling reaffirms what the Montana Supreme Court recognized 20 years ago, that the state constitution protects the right of pregnant people to access abortion care from a qualified health care provider of their choice. The state needs a compelling reason to restrict that right, which it cannot show in this case,” said Hillary Schneller, staff attorney at the Center for Reproductive Rights. 

The center, along with ACLU of Montana, filed the lawsuit in 2018 on behalf of Helen Weems, a certified nurse practitioner who co-owns a primary care clinic in Whitefish, and a women’s health nurse practitioner referenced as Jane Doe, who practices midwifery in Montana.

Before 1995, physicians and one physician assistant provided abortion services in Montana. That same year the Legislature passed a law that only allowed physicians to perform the procedure.

The Montana Supreme Court in 1999 struck down that law, saying keeping a woman from having a legal medical procedure, like an abortion, from a medical provider of her choosing was unconstitutional because it infringed on her right to individual privacy. 

But in 2005, the state Legislature changed the law again to restrict those who could perform abortions to licensed physicians and physician assistants, which limited access to providers around the state.

According to the 2018 lawsuit, 93% of the counties in Montana do not have an abortion provider. Those counties are home to 55 percent of the state's women.

Abortion services are available at four clinics in the state's larger areas: Missoula, Billings, Helena and Great Falls. The state has lost two abortion providers since 2013. From Whitefish, the location of Weem's clinic, a person would need to travel about 2.5 hours to Missoula for an abortion.

"Montana is a geographically large state with great distances separating its four abortion clinics," according to the lawsuit.

"As a result, vast expanses of the state lack adequate access to abortion services. Accordingly, pregnant people seeking abortions must travel significant distances to find their nearest provider, face delays as a result of inaccessibility or carry a pregnancy to term."

The nurses said they routinely perform procedures that are more complex than early term abortions and carry more risk.  Advanced practice nurses provide care for people experiencing miscarriages, which can be nearly identical to abortion care, the lawsuit reads. That can include management by medication or a surgical procedure, "essentially the same procedures as an early abortion," according to the lawsuit. These types of nurses can also deliver babies, which the lawsuit notes carries a greater risk to the patient.

In 2015, nearly half of Montana residents who had an abortion in the state had medical abortions, a method that is available up to 10 weeks from a woman’s last menstrual period.

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Ween has been performing abortions since the District Court's ruling, while she is training Doe to perform them.

Susan Cahill, a licensed physician assistant, is co-owner of the Whitefish clinic with Weem. A 2015 story by Montana Public Radio says that Cahill had a clinic in Kalispell that shut down after it was vandalized by a man who was sentenced to five years in prison, and 20 years total. Cahill had provided abortions since 1976 and a previous location of her clinic was lost to arson, MTPR reported.

The lawsuit estimated Cahill would provide abortion services two days a week and Weem would provide services four days.

Ten states, including Montana, protect a woman's right to an abortion in their state constitutions. Those include Alaska, California, Florida, Iowa, Kansas, Massachusetts, Minnesota, New Jersey and New Mexico. The Center for Reproductive Rights says nine other states — Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, New York, Oregon and Washington — have laws protecting access to abortion.

Earlier this month the Kansas Supreme Court blocked a law that attempted to ban second trimester abortions, saying that right was laid out in the state's constitution.

Abortion opponents in Kansas decried the ruling, saying they would try to amend the state's constitution, while those who support access to abortions say the ruling should set a benchmark for courts around the country.

The Washington Post reported last week that 11 states have backed laws that would ban abortion after six weeks, a point at which many women don't know they are pregnant, and that many of those bans are being challenged in court.

Montana's Republican-dominated Legislature, which adjourned last week, passed three abortion laws aimed at restricting or limiting access to the medical procedure. That includes the Montana Pain-Capable Unborn Child Protection Act, which would outlaw abortion after 20 weeks.

All three are expected to be vetoed by Gov. Steve Bullock, a Democrat who has vetoed similar bills in the past.

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