Case: Weems v. Montana

This is a case about abortion rights in Montana. On January 30, 2018, a nurse practitioner and a nurse midwife in Montana filed this suit in the Montana First Judicial District Court. The plaintiffs sued the state of Montana, alleging that state laws that allowed only physicians and physician assistants to perform abortions violated the state Constitution. The plaintiffs were represented by the American Civil Liberties Union and the Center for Reproductive Rights. They sought a declaratory judgment that the state laws were unconstitutional, a preliminary and permanent injunction preventing the enforcement of the laws, and attorney’s fees. The case was heard by Judge Mike Menahan.

In their complaint, the plaintiffs argued that a 2005 state law was unconstitutional because it prevented advanced practice registered nurses (APRNs), who are nurses with additional training, from performing abortions even though they are equally qualified to do so. In 1995, the legislature had passed a law allowing only physicians to perform abortions. However, in Armstrong v. State, the Montana Supreme Court ruled that the law violated people’s privacy rights under the state Constitution because it did not allow people the ability to choose what health care provider they would use to get an abortion. 989 P.2d 364. In 2005, the legislature passed a law that allowed only physicians or physician assistants to perform abortions and made it a felony for others to do so. In this case, the plaintiffs argued that the new law was unconstitutional on the same basis as the old one. They also argued for the unconstitutionality of several other laws that implied only physicians and physician assistants could perform abortions, such as recordkeeping or parental involvement laws.

The plaintiffs made three state constitutional arguments. First, they argued that the law violated people’s fundamental constitutional privacy rights because it did not allow people to make decisions about their bodily integrity. Second, they argued the law infringed on people's constitutional equal protection rights by specifically targeting APRNs and patients who come to them for abortions. Third, they argued that the law infringed on people’s constitutional right to dignity by preventing those who try to obtain abortions from getting proper medical care. The plaintiffs pointed out that Montana had only four facilities providing abortions, and that preventing APRNs from performing abortions made it more difficult for people to obtain reproductive health care without great cost.

In addition to their complaint, the plaintiffs filed a motion for a preliminary injunction, which the trial court granted on April 4, 2018. The court held that the state’s infringement on people’s constitutional right to an abortion qualified as irreparable harm, which justified a preliminary injunction. According to the court, the state law could not pass strict scrutiny because the defendants had not shown that the law was necessary to protect people’s health. The evidence suggested abortions performed by APRNs were not significantly more dangerous to patients than those performed by physicians and physician assistants. Therefore, the court issued an injunction preventing the enforcement of any of the state laws preventing APRNs from performing abortions while the case was pending.

The defendants appealed the preliminary injunction to the state Supreme Court, which affirmed the injunction by a 4-3 vote on April 26, 2019. 440 P.3d 4. The Court considered two primary issues that the defendants had raised. First, the defendants argued that the plaintiffs lacked standing to sue because they would not be allowed to perform abortions even if the statute did not exist, both because they lacked the proper license and because APRNs were not specifically given the legal ability to perform abortions by the state Board of Nursing. Since the law in question was not what kept the plaintiffs from performing abortions, the defendants claimed the plaintiffs lacked standing.

The Court disagreed, finding that the law did prevent the plaintiffs from performing abortions. The Court pointed out that the law prevented the plaintiffs from becoming licensed because the training to do so would involve performing abortions. Furthermore, the Court agreed with the plaintiffs’ argument that the Board of Nursing gave APRNs a lot of autonomy and so APRNs who were properly trained could theoretically perform abortions even without the Board of Nursing explicitly allowing it. Therefore, the Court held that the plaintiffs did have standing.

The second issue the Court addressed was the state’s argument that the district court lacked jurisdiction to rule on the case because the plaintiffs lacked the qualifications for performing abortions and so no one’s right to receive an abortion from the plaintiffs was being infringed. Essentially, the state claimed that the case was purely hypothetical, and the court did not have authority to rule on hypothetical matters. They also argued that the injunction should not have been granted because preliminary injunctions are meant to preserve the status quo, whereas this one did the opposite because under the status quo APRNs could not perform abortions.

The Court held that this second argument failed largely for the same reason as the first. The case was not purely hypothetical because the plaintiffs did not necessarily need explicit permission from the Board of Nursing to perform abortions, and because the law was the very reason the plaintiffs could not get the requisite training. One of the plaintiffs also already had a license that would have allowed her to prescribe medication abortion if not for the law. Additionally, the Court held that an injunction was justified given that patients who couldn't get an abortion because APRNs were not allowed to perform them would be irreparably harmed. Furthermore, the Court held that the injunction actually preserved the status quo, as the relevant status quo was the situation before the state passed the restrictive law, and during that time people had the ability to get abortions from any qualified medical provider. Therefore, the Court upheld the preliminary injunction and the case returned to the district court.

From May 2018 to June 2021, the parties engaged in discovery in the lower court. On August 30, 2021, both parties moved for summary judgment. On February 25, 2022, the court ruled in favor of the plaintiffs. The court held that the law violated constitutional privacy rights; it did not discuss the plaintiffs’ equal protection argument or their arguments about abortion accessibility in the state because the privacy argument was sufficient to justify a ruling.

According to the court, the legislature had no justification for preventing APRNs from performing abortions, and it was the responsibility of the Board of Medicine to decide what APRNs were qualified to do rather than the legislature. The court also noted that the Board of Medicine had passed a measure stating that performing abortions fell within the things the Board already allowed qualified APRNs to do, which eliminated the defendants' argument that APRNs couldn't perform abortions even if the law was changed. The court held that the constitutional right to an abortion included the right to choose where to get an abortion, which was infringed on by a law that arbitrarily banned certain health care professionals from performing abortions. Since the state law did not protect people’s health, and was not narrowly tailored, it could not pass strict scrutiny. Therefore, the court issued a declaratory judgment that the law was unconstitutional and a permanent injunction stopping it from being enforced.

On April 25, 2022, the state filed an appeal, which the Montana Supreme Court granted. As of November 2022, the case was ongoing, with oral argument scheduled for December 2022.