Case: Planned Parenthood of Montana v. State of Montana II

This case is about a challenge to a Montana ban on dilation and evacuation (“D&E”). 

On April 10, 2023, Planned Parenthood of Montana and its Chief Medical Officer (collectively, “Planned Parenthood”) brought this lawsuit in a state trial court against the State of Montana to raise a pre-enforcement challenge against HB 721. The bill in question was passed by the Montana legislature and if in effect, it would ban dilation and evacuation, the most common and safest method for second-trimester abortions. If signed into law, HB 721 would subject providers to harsh penalties, including fines of up to $50,000, 5-10 year prison sentences, stripping providers of their medical licenses for at least one year. At the time the lawsuit was filed, HB 721 was awaiting the Governor's signature, and once signed, it would go into effect immediately. Represented by Planned Parenthood Federation of America and private counsel, Planned Parenthood argued that HB 721 violated the state constitution's fundamental right to privacy. Relying on the Montana Supreme Court's 1999 decision in Armstrong v. State, Planned Parenthood alleged that the Montana Constitution protects a woman’s right of procreative autonomy, and that HB 721 violated that right without a compelling reason to do so. Plaintiffs sought declaratory and injunctive relief.

On the same day the Complaint was filed, Planned Parenthood also motioned for a temporary restraining order. Later that same day, Judge Kathy Seeley denied the motion as premature because the Governor had not yet signed the bill.

On May 3, 2023, Planned Parenthood filed an amended complaint, adding additional claims that another statute, House Bill 575 (“HB 575”), was unconstitutional and requesting immediate injunctive relief. HB 575 required a patient to obtain an ultrasound prior to an abortion and for the abortion provider to review the ultrasound. 

The next day, on May 4, the court granted a temporary restraining order and set a hearing on plaintiff’s motion for preliminary injunction on HB 575. The court found that Planned Parenthood had presented facts that, if true, established HB 575 violated the state constitutional right to a pre-viability abortion. Therefore, Planned Parenthood faced immediate and irreparable harm, while Defendants would not be harmed by a temporary restraining order.  

On May 16, 2023, however, the Governor signed HB 721 and it took immediate effect. On May 18, the Court issued a temporary restraining order preventing the State from enforcing HB 721, stating that Plaintiffs had established facts, which if proven as true, presented a prima facie constitutional violation. On May 23, a hearing to consider Planned Parenthood’s application for preliminary injunction was held and from the bench, the Court granted the request for a preliminary injunction of HB 575 and HB 721. The Court issued a written order granting the request for a preliminary injunction on July 11, 2023; the Clearinghouse does not have access to the order at this time. 

The next day, on May 24, 2023, Defendants appealed to the Montana Supreme Court. 

On November 9, 224, the Montana Supreme Court upheld the preliminary injunction in an opinion written by Justice Ingrid Gustafson. In the opinion, the Court rejected the State’s argument that plaintiffs lacked standing and held that Planned Parenthood was likely to succeed on their claims that HB 575 and HB 721 unconstitutionally infringed on the right to privacy. 

On March 7, 2025, the district court granted Planned Parenthood’s motion for summary judgment and denied the State’s motion, finding that both HB 575 and HB 721 were unconstitutional. Planned Parenthood had argued that the ultrasound requirement, HB 575, interfered with its ability to provide direct-to-patient (that is, telehealth) medication abortions to patients up to 11 weeks LMP. In response, the State had, for the first time, argued that the ultrasound requirement only applied to abortions done at or near the viability threshold. The court held that the State’s interpretation contradicted a plain reading of the statute. Instead, the court found the ultrasound requirement infringed on the right to privacy and to access abortion care and was not narrowly tailored to address a “medically acknowledged, bona fide health risk.” It similarly found that the D&E ban infringed on fundamental rights and was also not narrowly tailored to address such a health risk. 

The State has indicated it may appeal the decision. The case is ongoing.