Planned Parenthood v. State

2024 MT 227

Opinion

10/09/2024

DA 23-0288 Case Number: DA 23-0288

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 227

PLANNED PARENTHOOD OF MONTANA, and SAMUEL DICKMAN, M.D., on behalf of themselves and their patients,

Plaintiffs and Appellees,

v.

STATE OF MONTANA, by and through AUSTIN KNUDSEN, in his official capacity as Attorney General, the MONTANA DEPARTMENT OF PUBLIC HEALTH & HUMAN SERVICES, and CHARLIE BRERETON, in his official capacity as Director of the Department of Public Health and Human Services,

Defendants and Appellants.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2023-231 Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Austin Knudsen, Montana Attorney General, Michael D. Russell, Thane Johnson, Alwyn Lansing, Michael Noonan, Assistant Attorneys General, Helena, Montana

Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana

For Appellees:

Raph Graybill, Graybill Law Firm, PC, Great Falls, Montana

Dylan Cowit, Planned Parenthood Federation of America, Inc, New York, New York

Diana O. Salgado, Planned Parenthood Federation of America, Inc., Washington, District of Columbia

Michelle Nicole Diamond, Alex W. Miller, Rishita Apsani, Sean Chang, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York Peter Kurtz, Wilmer Cutler Pickering Hale and Dorr LLP, Denver, Colorado

For Amici American College of Obstetricians and Gynecologists, Society for Maternal-Fetal Medicine, and Society of Family Planning:

Rylee Sommers-Flanagan, Dimitrios Tsolakidis, Mikaela Koski, Upper Seven Law, Helena, Montana

Nicole A. Saharsky, Mayer Brown LLP, Washington, District of Columbia

For Amici Legal Voice, Montana Coalition Against Domestic & Sexual Violence, Asian Pacific Institute on Gender-Based Violence, Coalition Ending Gender-Based Violence, The National Domestic Violence Hotline, and Sexual Violence Law Center:

Matthew Gordon, Perkins Coie LLP, Seattle, Washington

Submitted on Briefs: May 8, 2024

Decided: October 9, 2024

Filed:

q.,-.6.--,f __________________________________________ Clerk

2 Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendants and Appellants the State of Montana, by and through Austin Knudsen

in his official capacity as Attorney General, the Montana Department of Public Health &

Human Services (DPHHS), and Charlie Brereton, in his official capacity as Director of

DPHHS (collectively, “the State”) appeal from the preliminary injunction issued by the

First Judicial District Court, Lewis and Clark County. The District Court’s preliminary

injunction enjoined two laws regarding abortion—HB 575 and HB 721—passed by the

Montana Legislature during the 2023 session.

¶2 We address the following restated issue on appeal:

Whether the District Court manifestly abused its discretion by granting a preliminary injunction which enjoined HB 575 and HB 721.

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 During the 2023 legislative session, the Montana Legislature passed several

abortion-related bills. This case deals with two of them—HB 721 and HB 575.

¶5 HB 721 prohibits dilation and evacuation (D&E) abortions, subjects providers who

perform D&E abortions to substantial criminal penalties, including up to 10 years’

imprisonment, and deems a provider who performs a D&E abortion to have committed

“unprofessional conduct” and imposes a mandatory 1-year suspension of that provider’s

license to practice medicine in Montana. HB 721 contains an exception allowing a D&E

abortion “in a medical emergency,” which the bill specifically notes “does not include

mental or psychological conditions.” In Montana, D&E is the only abortion procedure 3 available in an outpatient setting at or after approximately 15 weeks past a patient’s last

menstrual period (LMP).

¶6 HB 575 amends two statutes, §§ 50-20-104, -109, MCA, prohibits any abortion of

a fetus that is “viable, unless necessary to preserve the life of the mother,” and requires that

prior to any abortion a “determination of viability must be . . . made in writing by the

physician or physician assistant performing an abortion and include the review and record

of an ultrasound[.]” Essentially, HB 575 requires a patient to obtain, and an abortion

provider to review, an ultrasound prior to an abortion. An ultrasound is a procedure which

can only be performed in person, while medication abortions—the most common form of

abortion early in pregnancy, up to 11 weeks LMP—are typically able to be provided via

direct-to-patient telehealth, without the need for an in-person visit.

¶7 On April 10, 2023, Planned Parenthood of Montana (PPMT) and Dr. Samuel

Dickman, PPMT’s Chief Medical Officer, (collectively “Providers”) filed a verified

complaint alleging HB 721 was unconstitutional. Providers sought a temporary restraining

order (TRO) and preliminary injunction against HB 721, which the District Court denied

as premature because the governor had not yet signed HB 721 and there was therefore no

law to enjoin. On May 3, 2023, Providers filed a verified amended complaint, adding

additional claims asserting HB 575 was unconstitutional. That same day, Providers sought

a TRO and preliminary injunction against HB 575, which was signed by the governor on

May 3, 2023. On May 4, 2023, the District Court issued the requested TRO regarding

HB 575 and set a hearing on Providers’ request for a preliminary injunction. On May 8,

2023, the District Court issued an order continuing the preliminary injunction hearing until 4 May 23, 2023. On May 16, 2023, the governor signed HB 721 and Providers sought a

TRO and preliminary injunction in the District Court that same day. On May 18, 2023, the

District Court issued the requested TRO regarding HB 721 and set a hearing on Providers’

request for a preliminary injunction for May 23, 2023. Prior to the hearing, the parties filed

a joint stipulation regarding the hearing, which had been combined with a preliminary

injunction hearing in Lewis and Clark County District Court Cause No. ADV-23-299.1

Among other things, the stipulation provided that testimony taken at the hearing regarding

either case could be relied upon by the parties or the District Court in the other case and

that the parties, for the purposes of the preliminary injunction hearing(s) only, stipulated to

the qualifications of each other’s medical experts.

¶8 The District Court held the preliminary injunction hearing on May 23, 2023. At the

hearing, the court heard testimony of Dr. Dickman; Helen Weems, APRN-FNP; State

Medicaid Director Michael Randol; Dr. George Mulcaire-Jones; Nicole Smith; and

Dr. Steven Ralston. At the close of the hearing, the District Court orally granted the

Providers’ request for a preliminary injunction. The court noted it was considering the

recently-revised preliminary injunction standard, stated its belief that “the purpose of an

injunction is to maintain the status quo,” and granted the requested preliminary injunction

of HB 575 and HB 721 “based upon the evidence and testimony presented” at the hearing.

1 This cause dealt with a challenge to bills related to Medicaid funding of abortions. The District Court issued a preliminary injunction in Cause No. ADV-23-299, which the State appealed to this Court. In an opinion issued contemporaneously with the opinion in this case, we upheld the District Court’s grant of a preliminary injunction. Planned Parenthood of Mont. v. State, 2024 MT ___, ___ Mont. ___, ___ P.3d ___. 5 The District Court also informed the parties it was “not sure how quickly” it would be able

to issue the written orders for each of the cases covered at the hearing.

¶9 On May 24, 2023, the State filed a notice of appeal to this Court. The District Court

issued its written order granting the Providers’ request for a preliminary injunction on July

11, 2023. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW

¶10 “An order granting an injunction is immediately appealable, notwithstanding the

fact that the merits of the controversy remain to be determined.” Sandrock v. DeTienne,

2010 MT 237, ¶ 12, 358 Mont. 175, 243 P.3d 1123 (citing M. R. App. P. 6(3)(e)). We

review a district court’s grant of a preliminary injunction for a manifest abuse of discretion.

Planned Parenthood of Mont. v. State ex rel. Knudsen, 2022 MT 157, ¶ 5, 409 Mont. 378,

515 P.3d 301. “An abuse of discretion occurs if a lower court exercises granted discretion

based on a clearly erroneous finding of fact, erroneous conclusion or application of law, or

otherwise arbitrarily, without conscientious judgment or in excess of the bounds of reason,

resulting in substantial injustice.” Meine v. Hren Ranches, Inc., 2020 MT 284, ¶ 13, 402

Mont. 92, 475 P.3d 748. A manifest abuse of discretion is one which is obvious, evident,

or unmistakable. Est. of Mandich v. French, 2022 MT 88, ¶ 16, 408 Mont. 296, 509 P.3d

6. “The grant or denial of injunctive relief is a matter within the broad discretion of the

district court based on applicable findings of fact and conclusions of law.” Davis v.

Westphal, 2017 MT 276, ¶ 10, 389 Mont. 251, 405 P.3d 73. To the extent the district

court’s ruling is based on legal conclusions, we review the district court’s conclusions of

6 law to determine whether the court’s interpretation of the law is correct. Weems v. State

ex rel. Fox, 2019 MT 98, ¶ 7, 395 Mont. 350, 440 P.3d 4 (Weems I) (citation omitted).

DISCUSSION

¶11 Whether the District Court manifestly abused its discretion by granting a preliminary injunction which enjoined HB 575 and HB 721.

¶12 On March 2, 2023, the Legislature amended Montana’s preliminary injunction

statute. 2023 Mont. Laws ch. 43, § 1. While under the previous statute, a party seeking a

preliminary injunction was able to obtain a preliminary injunction “by demonstrating the

criteria of one of its five subsections,” Driscoll v. Stapleton, 2020 MT 247, ¶ 13, 401 Mont.

405, 473 P.3d 386, a party seeking a preliminary injunction since March 2, 2023, is now

required to meet the amended statute’s four-part conjunctive test:

A preliminary injunction order or temporary restraining order may be granted when the applicant establishes that:

(a) the applicant is likely to succeed on the merits;

(b) the applicant is likely to suffer irreparable harm in the absence of preliminary relief;

(c) the balance of equities tips in the applicant’s favor; and

(d) the order is in the public interest.

Section 27-19-201(1), MCA. The Providers sought a preliminary injunction to enjoin HB

575 and HB 721 after the amendments to the preliminary injunction statute took effect and

the preliminary injunction hearing in this case took place on May 23, 2023. Accordingly,

their request for a preliminary injunction is subject to the four-part conjunctive test of the

amended § 27-19-201(1), MCA.

7 ¶13 The Legislature amended Montana’s preliminary injunction law with the intent to

“mirror the federal preliminary injunction standard[.]” Section 27-19-201(4), MCA

(2023). The basic federal standard comes from the U.S. Supreme Court’s decision in

Winter v. NRDC, Inc., 555 U.S. 7, 129 S. Ct. 365 (2008), and requires that “[a] plaintiff

seeking a preliminary injunction must establish that he is likely to succeed on the merits,

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter,

555 U.S. at 20, 129 S. Ct. at 374. The Ninth Circuit, along with several other circuit courts,

has determined the Winter test did not eliminate the discretion of a district court judge to

preserve the status quo with provisional relief until the merits could be sorted out in cases

where clear irreparable injury would otherwise result and at least serious questions going

to the merits are raised. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir.

2011) (citation omitted). “A preliminary injunction may also be appropriate if a movant

raises ‘serious questions going to the merits’ and the ‘balance of hardships . . . tips sharply

towards’ it, as long as the second and third Winter factors are satisfied.” Disney Enters. v.

VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting All. for the Wild Rockies, 632

F.3d at 1134-35).

¶14 In the federal system, appellate review of a district court’s grant of injunctive relief

is meant to be “limited and deferential.” Flathead-Lolo-Bitterroot Citizen Task Force v.

Montana, 98 F.4th 1180, 1184 (9th Cir. 2024). In accordance with this deferential

standard, appellate review of an order granting a preliminary injunction “does not extend

to the underlying merits of the case.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) 8 (citation omitted). In general, “as long as the district court got the law right, it will not be

reversed simply because the appellate court would have arrived at a different result if it had

applied the law to the facts of the case.” Farris, 677 F.3d at 864 (cleaned up). Under our

caselaw, this Court’s review of a district court’s grant of a preliminary injunction is for a

manifest abuse of discretion. Planned Parenthood of Mont., ¶ 5. With these standards in

mind, we turn to the preliminary injunctions issued by the District Court in this case.

¶15 Beyond the merits of the injunctions, the State takes issue with both the District

Court’s oral ruling and its written order. The State asserts the District Court “ignored” the

revised preliminary injunction standard when issuing its oral injunction from the bench and

that the court’s written order, issued after the State appealed to this Court, “failed to

properly consider the facts and demonstrated a complete lack of independent judgment.”

The Providers contend the District Court correctly applied the revised preliminary

injunction standard in its oral ruling, which has, in any event, been superseded by the

court’s written order and that the State’s “subjective disagreement” with the court’s written

order cannot demonstrate a manifest abuse of discretion.

¶16 The Providers correctly note that the District Court’s oral injunction has been

superseded by the written order and is no longer before this Court. We briefly note,

however, that the State is incorrect in claiming that the District Court failed to consider any

of the four factors of the revised preliminary injunction test of § 27-19-201(1), MCA

(2023), when orally granting the Providers’ request for an injunction of HB 575 and HB

721. While the District Court expressed its opinion the new standard “puts the [d]istrict

[c]ourt judges in a difficult position” due to having to consider the likelihood of success on 9 the merits when neither the facts nor the legal arguments have “been fully developed during

the course of the litigation,” it nonetheless expressly noted it was “consider[ing]” the

Legislature’s “recent enactment to mirror” the federal injunction standard prior to granting

the preliminary injunction “based upon the evidence and testimony presented” at the

hearing. The State also takes issue with the District Court’s statement about the importance

of maintaining the status quo when it orally granted the preliminary injunctions regarding

HB 575 and HB 721, asserting it demonstrates the court did not consider the preliminary

injunction standard of § 27-19-201(1), MCA. As noted, the court did consider the revised

standard. And, in any event, the District Court’s belief regarding the importance of

maintaining the status quo is correct. In the federal courts, which have been interpreting

the Winter test for several years, it remains the case that “the purpose of a preliminary

injunction is to ‘preserve the status quo and the rights of the parties until a final judgment

issues in the cause.’” City & Cnty. of S.F. v. U.S. Citizenship & Immigr. Servs., 944 F.3d

773, 789 (9th Cir. 2019) (quoting U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091,

1094 (9th Cir. 2010)).

¶17 The State next asserts that the District Court adopting the Providers’ proposed order

when issuing its written order in this case demonstrates a lack of independent judgment

and the injunctions should be reversed on that basis. “While we discourage a district

court’s verbatim adoption of a prevailing party’s proposed order, such an action is not per

se error. A district court may adopt a party’s proposed order where it is sufficiently

comprehensive and pertinent to the issues to provide a basis for the decision.” Wurl v.

Polson Sch. Dist. No. 23, 2006 MT 8, ¶ 29, 330 Mont. 282, 127 P.3d 436 (citing In re M.W., 10 2004 MT 301, ¶ 28, 323 Mont. 433, 102 P.3d 6) (internal citation omitted);

see also In re Marriage of Frank, 2022 MT 179, ¶ 84, 410 Mont. 73, 517 P.3d 188 (“This

Court has approved the verbatim adoption of findings and conclusions where they are

comprehensive and detailed and supported by the evidence.”). “The litmus test is whether

a district court’s order sets forth reasoning, based upon its findings of fact and conclusions

of law, in a manner sufficient to allow informed appellate review.” Snavely v. St. John,

2006 MT 175, ¶ 11, 333 Mont. 16, 140 P.3d 492 (citing Shammel v. Canyon Res. Corp.,

2003 MT 372, ¶ 28, 319 Mont. 132, 82 P.3d 912). In reviewing the findings and

conclusions of a district court, our concern is “‘the result and not the source[.]’”

In re Marriage of Frank, ¶ 86 (quoting In re Marriage of Jensen, 193 Mont. 247, 252, 631

P.2d 700, 703 (1981)). “[T]here is no reason in the Rules or otherwise to give such adopted

findings a lesser degree of weight, since once signed by the district judge they bear the

imprimatur of the court.” In re Marriage of Jensen, 193 Mont. at 253, 631 P.2d at 703-04.

Our review of the District Court’s order in this case shows that the order is “sufficiently

comprehensive to provide a basis for its decision and for our review on appeal,” Wurl, ¶ 29,

and we turn now to addressing the substance of the court’s order.

Likelihood of Success on the Merits

¶18 The first prong of the preliminary injunction test is whether “the applicant is likely

to succeed on the merits[.]” Section 27-19-201(1)(a), MCA. “[L]ikelihood of success does

not require the applicant to establish entitlement to final judgment, relief at all events on

final hearing, relief at a trial on the merits, or evidence sufficient to prevail at trial.”

Planned Parenthood of Mont., ¶ 30 (cleaned up, collecting cases). The State asserts the 11 Providers are not likely to succeed on the merits because they lack standing and neither

HB 575 nor HB 721 violates the right to privacy, particularly when reviewed under a

rational basis test. The Providers contend they are likely to succeed on the merits because

both bills infringe the right to privacy and are thus subject to strict scrutiny review, under

which the State failed to demonstrate the bills are narrowly tailored to prevent a medically

acknowledged, bona fide health risk.

¶19 We begin with the State’s argument the Providers lack standing to bring this case.

In light of the “shifting legal landscape” related to abortion jurisprudence in the federal

courts following Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228

(2022), the State asks us to overturn decades of our own precedent which has consistently

held that “health care providers have standing to assert on behalf of their women patients

the individual privacy rights under Montana’s Constitution of such women to obtain a

pre-viability abortion from a health care provider of their choosing.” Armstrong v. State,

1999 MT 261, ¶ 13, 296 Mont. 361, 989 P.2d 364; see also Weems I, ¶ 12. As we

previously explained when the State recently asked us to overturn Armstrong in an appeal

from a preliminary injunction, “we decline to overrule precedent in such an appeal, when

the very purpose of a preliminary injunction is to maintain the status quo pending” the final

determination on the ultimate merits of the case. Planned Parenthood of Mont., ¶ 20. We

decline the State’s invitation to overturn decades of our own precedent and reaffirm, once

again, that we “have little trouble concluding . . . that [Providers] have standing to bring

their complaint” challenging the laws at issue here because they “impact[] the

12 constitutional rights of women patients” under the Montana Constitution’s guarantee of

privacy and are “directed at health care providers[.]” Weems I, ¶ 12 (citations omitted).

¶20 Beyond its standing argument, the State further contends that the Providers are

unlikely to succeed on the constitutional merits of their claims. The State asserts that HB

575 “neither implicates nor violates” the right to privacy and that HB 721 “does not infringe

on the right to a lawful pre-viability abortion.” The State further suggests that the bills are

subject to rational basis review post-Dobbs, but contends the bills withstand strict scrutiny

review in any case. The Providers assert that neither bill withstands strict scrutiny review.

¶21 In Dobbs, the U.S. Supreme Court held that “rational-basis review is the appropriate

standard for” challenges, brought under the U.S. Constitution, to state abortion regulations.

Dobbs, 597 U.S. at 300, 142 S. Ct. at 2283. The State asserts that court’s conclusion

regarding the proper standard of review for that type of challenge should now govern in

this Court. “[I]n our review of a preliminary injunction, we may review whether the district

court applied the proper level of judicial scrutiny to enjoin an allegedly unconstitutional

statute.” Mont. Cannabis Indus. Ass’n v. State, 2012 MT 201, ¶ 13, 366 Mont. 224, 286

P.3d 1161 (MCIA). The Providers’ challenge to HB 575 and HB 721 in this case is not

brought under the U.S. Constitution, but under the Montana Constitution. Specifically,

their challenge arises under the Montana Constitution’s explicit right to privacy—a right

which is not explicitly guaranteed in the U.S. Constitution. Compare U.S. Const. (no

explicit right to privacy), with Mont. Const. art. II, § 10 (providing an explicit right to

privacy—“The right of individual privacy is essential to the well-being of a free society

and shall not be infringed without the showing of a compelling state interest.”). “Montana 13 adheres to one of the most stringent protections of its citizens’ right to privacy in the United

States--exceeding even that provided by the federal constitution. Indeed, since the right of

privacy is explicit in the Declaration of Rights of Montana’s Constitution, it is a

fundamental right.” Armstrong, ¶ 34 (internal citation omitted). “Independently of the

federal constitution, when the right of individual privacy is implicated, Montana’s

Constitution affords significantly broader protection than the federal constitution.” Weems

v. State, 2023 MT 82, ¶ 35, 412 Mont. 132, 529 P.3d 798 (Weems II). In accordance with

the significantly broader protection provided by the Montana Constitution, we have long

“recognized that ‘legislation infringing the exercise of the right of privacy must be

reviewed under a strict-scrutiny analysis,’ which necessarily shifts the burden to the State

to demonstrate that the legislation is ‘justified by a compelling state interest and [is]

narrowly tailored to effectuate only that compelling interest.’” Weems II, ¶ 34 (quoting

Armstrong, ¶ 34). If either bill infringes on the Montana Constitution’s right to privacy, it

is subject to strict scrutiny review. Planned Parenthood of Mont., ¶ 20. Statutes are

presumed to be constitutional and the party challenging the constitutionality generally

bears the burden of proving the statute unconstitutional. Molnar v. Fox, 2013 MT 132,

¶ 49, 370 Mont. 238, 301 P.3d 824 (citations omitted). “While the analysis of a statute

pertaining to fundamental rights will generally require a strict scrutiny review that

ultimately shifts the burden, we still begin our review with the same principle: statutes are

presumed to be constitutional.” Weems II, ¶ 34. The District Court applied strict scrutiny

to both HB 575 and HB 721 as it determined both bills “implicate the right to privacy

enumerated in Article II, Section 10 of the Montana Constitution by banning pre-viability 14 abortions.” The court also found both bills “plainly implicate the right to privacy” by

“restrict[ing] access to pre[-]viability abortions.”

¶22 Here, the District Court

applied our precedent subjecting restrictions on abortion services to strict scrutiny because they interfere with the fundamental right to privacy. See Armstrong[, ¶¶ 39-40]. Concluding that Montana’s constitutional right to privacy “broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from government interference[,]” we held in Armstrong that “Article II, Section 10, protects the right to procreative autonomy[.]” Armstrong, ¶¶ 2, 14. Armstrong also held that any legislation that interferes with this right must be narrowly tailored to effectuate a compelling interest—“a medically acknowledged, [bona fide] health risk, clearly and convincingly demonstrated.” Armstrong, ¶¶ 34, 62.

Planned Parenthood of Mont., ¶ 20. “Because the District Court found that the challenged

laws restrict access to abortion services, it applied strict scrutiny under Armstrong. The

court followed our precedent and did not commit an error of law when it employed this

standard.” Planned Parenthood of Mont., ¶ 20. Applying strict scrutiny, we address each

challenged bill in turn.

HB 575

¶23 HB 575 imposes a requirement that every patient seeking an abortion obtain an

ultrasound prior to the procedure and that a determination of viability be “made in writing

by the physician or physician assistant performing an abortion and include the review and

record of an ultrasound[.]”2 The Providers assert that HB 575 will prevent them from

2 As the District Court recognized, the statute’s limitation of an abortion provider to a “physician or physician assistant” is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice in light of our decision in Weems II, which invalidated a law restricting who may perform an abortion in this state to a “physician or physician 15 providing direct-to-patient medication abortions, which are provided prior to fetal viability,

and often done via telehealth and typically without an ultrasound. There is no dispute that

all medication abortions provided by Providers are pre-viability abortions.

¶24 The State contends HB 575 does not infringe on the right to privacy because its only

effect on direct-to-patient medication abortions “is only to require an ultrasound in

determining fetal viability before” a medication abortion can proceed. The District Court

determined preliminarily that HB 575, by requiring an ultrasound in all cases, interferes

with a patient’s right to receive a medication abortion from a provider of her choice by

imposing an additional medical procedure; as such, the State must demonstrate the bill is

“narrowly tailored to effectuate a compelling interest—‘a medically acknowledged, [bona

fide] health risk, clearly and convincingly demonstrated.’” Planned Parenthood of Mont.,

¶ 20 (quoting Armstrong, ¶¶ 34, 62). “A narrowly tailored law is ‘the least onerous path

that can be taken to achieve the state objective.’” Weems II, ¶ 44 (quoting Wadsworth v.

State, 275 Mont. 287, 302, 911 P.2d 1165, 1174 (1996)).

¶25 The State has failed to meet its burden in this regard and at this stage, based upon

the evidence presented, the Providers have shown they are likely to succeed on the merits.

The Providers presented evidence demonstrating that direct-to-patient medication

abortions provided without an ultrasound are safe and effective. The Providers presented

evidence demonstrating they only provide medication abortions until approximately 11

weeks after a patient’s LMP, and that in many cases it is medically unnecessary to perform

assistant” when the State presented no evidence “abortions performed by APRNs include more risk than those provided by physicians or PAs.” Weems II, ¶ 51. 16 an ultrasound to either determine gestational age or screen for an ectopic pregnancy. “In

narrowly defined instances the state, by clear and convincing evidence, may demonstrate

a compelling interest in and obligation to legislate or regulate to preserve the safety, health

and welfare of a particular class of patients or the general public from a medically-

acknowledged, [bona fide] health risk.” Armstrong, ¶ 59. Evidence presented at the

hearing, which was credited by the District Court, showed that Providers have been

providing direct-to-patient medication abortions via telehealth without the need for an

ultrasound, which they classify as medically unnecessary in a large number of cases

because they use other methods to screen to “ensure that patients meet their medical criteria

for a direct-to-patient medication abortion.” Both Dr. Dickman and Dr. Ralston testified

that medication abortions can be (and are) safely and effectively provided via telehealth

without an ultrasound. The District Court determined preliminarily that HB 575 burdens

patients by requiring them to undergo the time and expense of such a medically

unnecessary procedure and forces an in-person visit on a procedure which has safely been

done via telehealth for years. At this stage in the litigation, the State has not clearly and

convincingly demonstrated HB 575 is “narrowly tailored to effectuate a compelling

interest—‘a medically acknowledged, [bona fide] health risk, clearly and convincingly

demonstrated.’” Planned Parenthood of Mont., ¶ 20 (quoting Armstrong, ¶¶ 34, 62).

While the State takes issue with the District Court crediting the testimony of the Providers’

experts over that of the State’s expert, such a credibility determination is entirely within

the province of the District Court to make. See In re T.N.-S., 2015 MT 117, ¶ 24, 379

Mont. 60, 347 P.3d 1263. And such testimony remains subject to full development and 17 evaluation in the merits proceeding. Under a strict scrutiny analysis, the Providers are

likely to succeed on their claim HB 575 is an unconstitutional infringement on a patient’s

right to privacy.

¶26 Justice Rice’s Concurrence and Dissent provides the correct legal standard

regarding one bill, before discarding it in favor of hypotheticals when dealing with the

other. With regard to HB 721, Justice Rice correctly notes this “Court’s precedent has

consistently protected medical procedures and protocols approved and utilized by the

medical profession to perform abortions, subject to regulation on the basis of ‘a

medically-acknowledged, bona fide health risk.’” Concurrence and Dissent, ¶ 49. His

Dissent regarding HB 575 then completely ignores this straightforward standard on the

dubious assertion that the State has no power to ensure that only pre-viability abortions are

performed without forcing women to undergo a medically unnecessary procedure

involving an in-person visit. While Justice Rice inaccurately claims the District Court’s

legal analysis was flawed because it “did not discuss the parameters of Armstrong that

limited the reproductive right to pre-viability abortions,” Concurrence and Dissent, ¶ 52,

we note the District Court’s order uses the term “pre-viability” 11 times and the factual

content adduced at the hearing entirely involved the pre-viability procedures the Providers

asserted the State was interfering with through HB 575 and HB 721. There is also no

factual dispute that every single medication abortion done by the Providers is a pre-viability

abortion done only until approximately 11 weeks LMP, which is 13 weeks prior to HB

575’s own 24-week fetal viability presumption, making Justice Rice’s digression into

questioning whether HB 575 prevents post-viability abortions speculative, hypothetical, 18 and contradicted by the evidence. Specific to HB 575, the Providers presented testimony

that direct-to-patient medication abortions have been safely done via telehealth without the

need for an ultrasound for many years; that those abortions are safe and effective and do

not require the use of an ultrasound prior to the procedure; that an ultrasound prior to a

medication abortion is medically unnecessary in most cases; and both Dr. Dickman and

Dr. Ralston testified that use of an ultrasound prior to a medication abortion is not the

standard of care. The State’s expert, Dr. Mulcaire-Jones, testified that use of an ultrasound

was the standard of care; however, he has never performed an abortion and the District

Court gave his testimony less weight than the Providers’ experts. Justice Rice apparently

distills this testimony to a finding that “ultrasounds are an approved medical procedure that

is commonly utilized.” Concurrence and Dissent, ¶ 53. But a doctor choosing to use an

ultrasound as part of his or her own medical judgment is an entirely different scenario than

that doctor being forced to require their patient to undergo a medically unnecessary

ultrasound due to State decree and not medical necessity.

¶27 Justice Rice further contends HB 575 meets constitutional muster by relying on the

U.S. Supreme Court’s decision in Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610

(2007). Gonzales is a case in which the Supreme Court upheld the constitutionality of the

federal Partial-Birth Abortion Act of 2003, applying that Court’s “undue burden” test, in

which the Supreme Court would uphold abortion regulations unless a regulation places “a

substantial obstacle” in the path of a woman seeking a pre-viability abortion. Gonzales,

550 U.S. at 146, 127 S. Ct. at 1626-27 (citation omitted). Obviously, that Court’s “undue

burden” test has since been eviscerated by Dobbs, but, more importantly, “the ‘undue 19 burden’ test is not the standard in our courts, given the Montana Constitution’s more robust

protections.” Planned Parenthood of Mont., ¶ 47 (citing Armstrong, ¶¶ 40-41). Finally,

while Justice Rice contends he is applying strict scrutiny review to HB 575, the simple fact

is that he is not reviewing HB 575 under our strict scrutiny precedent, which would require

a showing that HB 575 is “narrowly tailored to effectuate a compelling interest—‘a

medically acknowledged, [bona fide] health risk, clearly and convincingly demonstrated.’”

Planned Parenthood of Mont., ¶ 20 (quoting Armstrong, ¶¶ 34, 62). The testimony elicited

at the hearing, and credited by the District Court, demonstrated the ultrasound requirement

of HB 575 had nothing to do with a medically acknowledged, bona fide health risk, because

the testimony of the Providers was that use of an ultrasound prior to a medication abortion

was, in most cases, “medically unnecessary.” Rather than assuring the abortion is

pre-viability, as Justice Rice contends—though he has manufactured this concern out of

whole cloth as there is zero dispute the medication abortions at issue are all performed (at

least) three months prior to any presumed fetal viability—HB 575 implicates the

constitutional right to privacy and burdens patients by requiring them to undergo the time

and expense of a medically unnecessary procedure and forces an in-person visit on a

procedure which has safely been done via telehealth for years.

HB 721

¶28 HB 721 prohibits and criminalizes D&E abortions, which are the only abortion

procedure available in an outpatient setting at or after approximately 15 weeks past a

patient’s LMP. The State asserts that by making unlawful a specific abortion procedure,

D&E, HB 721 does not infringe on the right to obtain a lawful pre-viability abortion. The 20 District Court was not persuaded by this argument, and the State has not shown that it

manifestly abused its discretion.

¶29 In a footnote defending the merits of HB 721 on appeal, the State, based upon its

reading of Dobbs, once again asks this Court to overturn Armstrong in this appeal from a

preliminary injunction. As we have previously noted, the State asked this Court to overturn

Armstrong in such a case just two years ago. See Planned Parenthood of Mont., ¶ 20. At

the time of that case, Dobbs had already been issued by the U.S. Supreme Court. Nothing

has changed in the intervening years which would compel this Court to reverse its plain

statement that “we decline to overrule precedent in such an appeal, when the very purpose

of a preliminary injunction is to maintain the status quo pending” the final determination

on the ultimate merits of the case. Planned Parenthood of Mont., ¶ 20.

¶30 Regarding HB 721 itself, the State failed to present evidence a ban on D&E

abortions addresses a medically acknowledged, bona fide health risk. The Providers

provide D&E abortions between approximately 15 and 21.6 weeks LMP, before fetal

viability, and the procedure is safe and effective.3 The Providers presented evidence this

is the only abortion procedure currently available in an outpatient setting after 15 weeks

LMP in the state of Montana. The District Court found that D&E abortions are safer than

childbirth and the State’s proposed alternative procedures are “less safe” and would “add

risk to the patient.” The State again takes issue with the District Court crediting the

3 This case addresses restrictions affecting only pre-viability abortions. Section 1(6)(b)(ii) of HB 575 presumes viability at 24 weeks gestational age. The parties do not dispute this presumptive measure. 21 testimony of the Providers’ experts over that of the State’s expert, but such a credibility

determination remains the province of the District Court to make. See In re T.N.-S., ¶ 24.

At this stage in the litigation, the State has not clearly and convincingly demonstrated

HB 721 is “narrowly tailored to effectuate a compelling interest—‘a medically

acknowledged, [bona fide] health risk, clearly and convincingly demonstrated.’” Planned

Parenthood of Mont., ¶ 20 (quoting Armstrong, ¶¶ 34, 62). Indeed, rather than preventing

risk, the evidence of record thus far demonstrates HB 721 unnecessarily adds risk to a

patient seeking a pre-viability abortion and infringes on the right to privacy guaranteed by

the Montana Constitution. Under a strict scrutiny analysis, the Providers are likely to

succeed on their claim HB 721 is an unconstitutional infringement on a patient’s right to

privacy.

¶31 As to both bills, the Providers have demonstrated they are likely to succeed on the

merits of their claims based upon the evidence presented thus far. At a minimum, they

have presented “serious questions” going to the merits. All for the Wild Rockies, 632 F.3d

at 1134. The District Court properly applied strict scrutiny and there is no manifest abuse

of discretion in the District Court’s determination the Providers are likely to succeed on

the merits as to the unconstitutionality of HB 575 and HB 721.

Likelihood of Irreparable Harm

¶32 The second prong of the preliminary injunction test concerns whether “the applicant

is likely to suffer irreparable harm in the absence of preliminary relief[.]” Section

27-19-201(1)(b), MCA. “For the purposes of a preliminary injunction, the loss of a

constitutional right constitutes an irreparable injury.” Driscoll, ¶ 15; see also MCIA, ¶ 15. 22 A privacy violation is “commonly recognize[d] . . . as causing irreparable injur[y].”

Weems I, ¶ 25.

¶33 We have determined the Providers are likely to succeed on their constitutional

claims relating to both HB 575 and HB 721—those claims being a violation of the Montana

Constitution’s right to privacy. In itself, the loss of that constitutional right is an irreparable

injury “for the purpose of determining whether a preliminary injunction should be issued.”

MCIA, ¶ 15 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689-90 (1976)).

Accordingly, there is no manifest abuse of discretion in the District Court’s determination

HB 575 and HB 721 are likely to cause irreparable harm in the absence of a preliminary

injunction.

Balance of Equities and Public Interest

¶34 The third prong of the preliminary injunction test is whether “the balance of equities

tips in the applicant’s favor,” § 27-19-201(1)(c), MCA, while the final prong of the

preliminary injunction test is whether “the order is in the public interest.” Section

27-19-201(1)(d), MCA. When the government opposes a preliminary injunction, these two

factors “merge into one inquiry.” Porretti v. Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021)

(citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)).

¶35 The State asserts the Providers cannot meet either prong of the test because they are

not likely to succeed on the merits of their claims. As we have already discussed, the

State’s assertion on that point is incorrect. At this stage of the proceedings, the State has

not clearly and convincingly demonstrated either bill is “narrowly tailored to effectuate a

compelling interest—‘a medically acknowledged, [bona fide] health risk, clearly and 23 convincingly demonstrated.’” Planned Parenthood of Mont., ¶ 20 (quoting Armstrong,

¶¶ 34, 62).

¶36 “[T]he Montana Constitution guarantees a fundamental right to access abortion care

from a qualified health care provider of a woman’s choice.” Weems II, ¶ 43 (citing

Armstrong, ¶ 75; Weems I, ¶ 26). As addressed in the likelihood of success prong, both

HB 575 and HB 721 are likely unconstitutional infringements of that fundamental right.

The balance of the equities clearly tips in the Providers’ favor because “the government

suffers no harm from an injunction that merely ends unconstitutional practices and/or

ensures that constitutional standards are implemented.” Doe v. Kelly, 878 F.3d 710, 718

(9th Cir. 2017) (internal quotation marks omitted). The preliminary injunction is also in

the public interest because “it is always in the public interest to prevent the violation of a

party’s constitutional rights,” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

(citations omitted), and “all citizens have a stake in upholding the Constitution.”

Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005).

¶37 There is no manifest abuse of discretion in the District Court’s determination the

balance of the equities tips in the Providers’ favor because the government suffers no harm

from an injunction which merely ends unconstitutional practices and that a preliminary

injunction enjoining HB 575 and HB 721 is in the public interest because it is always in

the public interest to prevent a violation of a party’s constitutional rights. As such, the

Providers have met all four prongs of the preliminary injunction test and the District Court

did not manifestly abuse its discretion by granting their request for a preliminary

injunction. 24 ¶38 The final argument by the State is a two-paragraph assertion that the District Court’s

injunction was too broad as it relates to HB 575 because the “District Court could have

simply enjoined the ultrasound requirement and the purported limitation on the practice of

abortion to the exclusion of APRNs in light of this Court’s decision in Weems II, but it

instead enjoined HB 575 in its entirety.” The State offers no substantive analysis in support

of this argument other than to cite two cases involving injunctive relief, neither of which

involve a challenge to the constitutionality of a statute: Califano v. Yamasaki, 442 U.S.

682, 702, 99 S. Ct. 2545, 2558 (1979) (addressing whether a class action extended to a

nationwide class), and Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987) (court order

that the Migrant and Seasonal Agricultural Worker Protection Act covered forestry workers

nationwide).

¶39 Providers respond that in cases involving a challenge to the constitutionality of a

statute, when a statute does not have a severability clause, we have consistently advised

against severing unconstitutional portions unless “the remainder of the statute, if and when

the unconstitutional provisions are severed, [is] complete in itself and capable of being

executed in accordance with the apparent legislative intent.” Finke v. State ex rel.

McGrath, 2003 MT 48, ¶ 26, 314 Mont. 314, 65 P.3d 576. As Providers correctly note,

HB 575 contains no severability clause.

¶40 Notably, in its reply brief, the State fails to respond to Providers’ argument

regarding the severability of unconstitutional provisions. So while we make no judgment

as to whether or not the provisions of HB 575 that are not the subject of the Providers’

challenge may be constitutional in their own right, we are left to speculate as to the State’s 25 position regarding their severability. We have stated on numerous occasions that “we are

not obligated to develop arguments on behalf of parties to an appeal, nor are we to guess a

party’s precise position, or develop legal analysis that may lend support to his position.”

McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 20, 369 Mont. 433, 300 P.3d 679 (citing

Botz v. Bridger Canyon Plan. & Zoning Comm’n, 2012 MT 262, ¶ 46, 367 Mont. 47, 289

P.3d 180).

¶41 In sum, our review of the record in this case shows the District Court did not

manifestly abuse its discretion by issuing a preliminary injunction enjoining HB 575 and

HB 721, because the Providers are likely to succeed on the merits, would be irreparably

harmed absent an injunction, the balance of the equities tips in the Providers’ favor, and

the injunction is in the public interest.

CONCLUSION

¶42 The District Court did not manifestly abuse its discretion by issuing a preliminary

injunction enjoining HB 575 and HB 721. The case will proceed to trial and await the

District Court’s decision on the ultimate merits of the Providers’ claims. See Planned

Parenthood of Mont., ¶ 61.

¶43 Affirmed.

/S/ INGRID GUSTAFSON

We Concur:

/S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER

26 Justice Jim Rice, concurring and dissenting.

¶44 I concur with the Court’s determination that the District Court properly granted the

preliminary injunction regarding HB 721. I dissent from the Court’s determination that the

District Court properly enjoined HB 575, and would reverse the preliminary injunction

with regard to that bill.

¶45 I will not reiterate the entirety of my discussion, provided within the companion

case of Planned Parenthood of Montana, et al. v. State, DA 23-0287, of the new Montana

statute governing the issuance of preliminary injunctions, effective in March 2023. It is

sufficient here to note that the factors now provided by § 27-19-201(1), MCA (2023), are

conjunctive, and that the failure of a petitioner to satisfy all or any of the factors requires

denial of the injunction request. See Montanans Against Irresponsible Densification, LLC

v. State, 2024 MT 200, ¶ 12, 418 Mont. 78, ___ P.3d ___ (“The current test is conjunctive.

That is, the applicant for an injunction bears the burden of establishing the likelihood of

each element: success on the merits; irreparable harm; balance of equities; and public

interest.”).

¶46 I agree with the Court’s determination that it is inappropriate in the context of this

review of a preliminary injunction to undertake consideration of the State’s request to

revisit our precedent governing the issue altogether, particularly, the holding in Armstrong.

Under the prior injunction statute, we held that we would “decline to overrule precedent”

within a preliminary injunction appeal, reasoning that “the very purpose of a preliminary

injunction is to maintain the status quo.” Planned Parenthood of Mont., ¶ 20. While the

stated factors under the new statute do not expressly include maintenance of the status quo, 27 the Court notes, Opinion, ¶ 13, that federal courts continue to consider maintenance of the

status quo within assessment of the expressly-stated factors, and thus I believe our

reasoning in Planned Parenthood for declining to revisit case precedent within an appeal

of a preliminary injunction remains viable. See also Vital Pharms., Inc. v. Alfieri, 23 F.4th

1282, 1290 (11th Cir. 2022) (“[A] preliminary injunction is meant to keep the status

quo for a merits decision, not to replace it.”).

¶47 However, in my view, preservation of the status quo is not a consideration that can

singularly outweigh application of the individual statutory factors, which necessarily

require a legal analysis of likelihood of success on the merits, as I discussed in the

companion case. While the injunction statute contemplates consideration of all the stated

factors, it is clear that a petitioner’s failure to establish a likelihood of success on the merits

is fatal with or without consideration of the other factors. Consistent with our holding that

the new statutory factors are conjunctive, the Ninth Circuit Court of Appeals has explained,

as have other courts, that “[l]ikelihood of success on the merits is ‘the most important’

factor; if a movant fails to meet this ‘threshold inquiry,’ we need not consider the other

factors.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (citation omitted).

¶48 As I also discussed in the companion case, establishing a likelihood of success on

the merits must include consideration of the likelihood of overcoming the presumption of

a challenged bill’s constitutionality. “Every possible presumption must be indulged in

favor of the constitutionality of a legislative act. . . . The party challenging a statute bears

the burden of proving that it is unconstitutional beyond a reasonable doubt and, if any doubt

exists, it must be resolved in favor of the statute.” Powell v. State Compensation Ins. Fund, 28 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877 (emphasis added) (internal citations

omitted). This requirement is all the more critical here, where the Plaintiffs have

challenged the subject bills as being facially unconstitutional. “The crux of a facial

challenge is that the statute is unconstitutional in all its applications.” Advocates for Sch.

Trust Lands v. State, 2022 MT 46, ¶ 29, 408 Mont. 39, 505 P.3d 825. Thus, in the context

of a preliminary injunction request, plaintiffs must demonstrate the likelihood that the

presumption of constitutionality will be successfully overcome for any application of the

challenged bills. See City of Billings v. County Water Dist., 281 Mont. 219, 227, 935 P.2d

246, 250 (1997) (petitioner for injunctive relief need not “prove beyond a reasonable

doubt” that a challenged statute is unconstitutional, but nonetheless “must make out a prima

facie case of unconstitutionality.”).

¶49 Regarding HB 721, I concur that the Plaintiffs sustained this heavy burden. HB 721

prohibits with a narrow emergency exception the utilization of a particular kind of medical

procedure, dilation and evacuation, to perform an abortion. The Court’s precedent has

consistently protected medical procedures and protocols approved and utilized by the

medical profession to perform abortions, subject to regulation on the basis of “a

medically-acknowledged, bonafide health risk.” Armstrong, ¶ 62; Planned Parenthood of

Mont., ¶ 20. In response to the State’s defense here that the subject procedure is inhumane

and carries increased health risks, the District Court determined that “Defendants have not

provided any evidence to support this claim,” and thus the basis for permissible state

regulation of the subject medical procedure under the Court’s precedent was not proven

for purposes of a preliminary injunction. 29 ¶50 Further, the District Court found that dilation and evacuation abortions are

“performed beginning after approximately 15 weeks LMP, before fetal viability,” and are

widely utilized, and thus a statutory prohibition would impair access to pre-viability

abortions. Pre-viability abortions come within the reproductive right established and

protected by Armstrong. See Armstrong, ¶ 49 (“Implicit in this right of procreative

autonomy is a woman’s moral right and moral responsibility to decide, up to the point of

fetal viability, what her pregnancy demands of her in the context of her individual values,

her beliefs as to the sanctity of life, and her personal situation.”) (emphasis added).

Consequently, the challenged bill would impact the defined pre-viability right by

regulating medical procedures without establishment of the appropriate basis to do so as

required under the Court’s clear precedent. Under these circumstances, I believe Plaintiffs

have satisfied their burden to establish the preliminary injunction factors, including

likelihood of success on the merits under the Court’s precedent, encompassing the

likelihood of overcoming the presumption of constitutionality, and thus I concur with

affirming the District Court’s preliminary enjoinder of HB 721.

¶51 I view the challenge to HB 575 as postured significantly differently than the

challenge to HB 721. HB 575 amends the Montana Abortion Control Act,

§ 50-20-109(1)(b), MCA, to prohibit post-viability abortions unless necessary to preserve

the life of the mother. This is consistent with Armstrong. Additionally, consonant with

the furtherance of that same interest, the bill amends § 50-20-104(6)(b), MCA, to require

that an abortion provider make a determination of viability based upon review of an

ultrasound to assess the gestational age of a fetus, and defining the same by a presumption 30 of fetal viability beginning at 24 weeks gestational age. About this issue, significant

medical evidence from both sides was introduced regarding the use of ultrasounds to

determine gestational age, including testimony from Plaintiffs’ experts acknowledging that

ultrasounds are used for this purpose in some cases. Nonetheless, the District Court

concluded it was “not persuaded” that HB 575 would further the State’s interest in ensuring

appropriate gestational age.

¶52 However, I believe the District Court’s legal analysis was flawed. The court did not

discuss the parameters of Armstrong that limited the reproductive right to pre-viability

abortions, and the State’s legitimate interest in ensuring that abortion practice conforms to

those constitutional parameters. The State’s interest in determining gestational age is not

an isolated medical issue. HB 575 employs a recognized medical procedure to ensure

satisfaction with the constraints upon abortions under Armstrong, that is, its limitation to

pre-viability abortions. Enjoining HB 575 leaves the State without a mechanism to ensure

the law is followed.

¶53 Further, where the Court’s precedent has not specifically addressed this kind of

legislative regulation designed to ensure that abortions are performed consistent with the

Armstrong parameters, the District Court’s failure to credit HB 575 with the presumption

of constitutionality, not mentioning it at all, is in my view a critical analytical error. The

District Court also failed to consider that, in light of the Plaintiffs’ facial challenge, HB 575

must be found to be likely unconstitutional in every possible application. But, of course,

it is not. Even the testimony of the Plaintiffs’ experts, accepted by the District Court,

31 acknowledged that ultrasounds are an approved medical procedure that is commonly

utilized.

¶54 Seemingly lost in the discussion is a recognition that, like all constitutional rights,

the right to privacy, here the right to a pre-viability abortion, is not absolute or exempt from

any effort by the Legislature to assure appropriate protections for patients undergoing

abortion procedures, for the pre-born child, and, as stated in the injunction statute, for the

“public interest” in ensuring that the abortion services have appropriate oversight and are

being properly provided. The State possesses “a police power by which it can regulate for

the health and safety of its citizens.” Wiser v. State, 2006 MT 20, ¶ 19, 331 Mont. 28, 129

P.3d 133. It cannot be that laws regulating abortion and abortion-related procedures are

per se unconstitutional, or that the Legislature has no role to play in providing oversight to

the provision of abortion services. As explained by then-Justice, and later Chief Justice,

Gray, in her Armstrong concurring opinion, regarding the Legislature’s and the public’s

interest in the issue:

[I]t is necessary to comment on those portions of the Court’s opinion which discuss the propriety of leaving the determination of standards for medical practice in the hands of the medical community—acting through the medical examining and licensing authorities. I generally agree with the Court’s discussion in those regards but I do not agree with any implicit notion therein that the Legislature has no place at all in the equation. It is important to keep in mind that the practice of medicine is a privilege, not a right, in Montana and that it is generally subject to legislative oversight in order to protect the health, safety, and welfare of the people of Montana. See § 37-3-101, MCA. Indeed, the Montana Board of Medical Examiners (Board) is an entity created by the Legislature via § 2-15-1841, MCA, and given the powers and duties set forth in § 37-3-203, MCA, for the purpose of ensuring that medical licensees conform to appropriate standards of conduct and exercise the privileges granted to them “in the greatest public interest.”

32 Armstrong, ¶ 79 (Gray, J., concurring) (emphasis added). We further recognized this

principle in Weems II, ¶ 38, stating that “every restriction on medical care does not

necessarily impermissibly infringe on the right to privacy,” and that “Montanans do not

possess an unqualified right to obtain medical care free of State regulation.” As the U.S.

Supreme Court has similarly explained, “[t]he government may use its voice and its

regulatory authority to show its profound respect for the life within the woman.” Gonzales

v. Carhart, 550 U.S. 124, 157, 127 S. Ct. 1610, 1633 (2007). “Regulations which do no

more than create a structural mechanism by which the State, or the parent or guardian of a

minor, may express profound respect for the life of the unborn are permitted, if they are

not a substantial obstacle to the woman’s exercise of the right to choose.” Gonzales, 550

U.S. at 146, 127 S. Ct. at 1627 (citing Planned Parenthood v. Casey, 505 U.S. 833, 877,

112 S. Ct. 2791, 2821 (1992)).

¶55 Armstrong’s recognition of a reproductive right to privacy focused on fetal viability

as the critical juncture, and held that the right was limited to pre-viability abortions.

Armstrong ¶ 49. By HB 575, the Legislature is, for purposes of a preliminary injunction

inquiry, creating a structural mechanism to ensure that the parameters of the Armstrong

pre-viability right are properly enforced, and is not restricting “the woman’s exercise of

the right to choose.” Gonzales, 550 U.S. at 146, 127 S. Ct. at 1627. Consistent with

Armstrong, the State is entitled to ensure that a pre-viability medical status exists for an

abortion, and such an interest is compelling under a strict scrutiny review. In my view, the

District Court’s analysis failed to account for these considerations by failing to recognize

the State’s compelling interest in enforcing the Armstrong right, failing to accord HB 575 33 a presumption of constitutionality in furtherance of the state’s interest, and failing to

require that HB 575 be shown to be facially unconstitutional, which leads me to conclude

that the District Court’s determination regarding likelihood of success on the merits cannot

be sustained, and the Plaintiffs’ showing was insufficient.

¶56 I would affirm the preliminary injunction as to HB 721, and reverse as to HB 575.

/S/ JIM RICE