Montana Supreme Court Expands Abortion Access

Last Friday, the Montana Supreme Court struck down a state law barring advanced practice registered nurses from performing abortions. The court unanimously held that by restricting the availability of abortion care without any legitimate health risks, the state had violated Montanans’ fundamental right under the state constitution to seek abortion care from the qualified provider of their choosing. In what was largely an application of existing precedent, the decision reaffirmed the state constitutional right to abortion in the absence of federal constitutional protections.

Despite this outcome, the legal fight over reproductive freedom in Montana isn’t over. Days after the ruling, Gov. Greg Gianforte (R) signed a package of abortion restrictions into law, including one banning the most common abortion procedure used after 15 weeks of pregnancy, sparking a new round of legal challenges. As has become the norm in the post-Dobbs legal landscape, state courts in Montana and across the country will continue to define the contours of reproductive rights.

The case decided last week, Weems v. State, stems from a long-running dispute over a 2005 Montana law making it a felony for anyone except for physicians and physician assistants to perform abortions. The Center for Reproductive Rights and the American Civil Liberties Union of Montana filed a lawsuit in 2018 on behalf of two advanced practice registered nurses, Helen Weems and Jane Doe, to block the law. They argued it violated a 1999 Montana Supreme Court decision that recognized abortion as a protected medical choice under the Montana Constitution’s right to privacy. 

A district court stopped the state from enforcing the law while the case progressed, and in 2022, it ruled in favor of the plaintiffs. The court concluded that the medical community viewed advanced practice registered nurses as able to provide abortion care, so the legislature had no reason to prevent them from doing so. The state appealed the decision to the high court, claiming that the restrictions on abortion providers were necessary for general health and safety reasons, as these nurses weren’t equipped to handle the “high risks” posed by early abortion procedures.  

The Montana high court’s decision dismissed this argument, concluding that “there is no medically acknowledged, bona fide health risk for the State to restrict the availability of abortion care by preventing [advanced practice registered nurses] from performing abortions.” It cited extensive evidence demonstrating the safety of early abortion procedures and the rarity of complications during and after procedures. It also stressed the fact that these nurses are legally permitted to handle miscarriages, which pose the same health risks as early abortions. 

Additionally, the court spoke to the real-world impact of limiting legal abortion services. As of 2014, women in the state had to travel an average of 180 miles or more to reach their closest abortion provider, and as of 2017, over 90 percent of Montana’s counties lacked an abortion provider. In light of the scarce availability of care, the court wrote, “limiting the pool of qualified providers would significantly interfere with a patient’s right of privacy because of significant cost and travel required to access a provider.” And absent a compelling health and safety reason, the court concluded the state cannot infringe on this fundamental right, which is granted “significantly broader protection” by Montana’s constitution than by the federal Constitution.

Reproductive rights advocates celebrated the ruling, which will improve access to abortion care not only for women in Montana but in the entire region, as several of the state’s neighbors have banned abortion. The Montana Department of Justice, not surprisingly, condemned it. As the legal battles continue in Montana and beyond, state supreme courts’ interpretations of their constitutions are sure to play a pivotal role.

Gabriella Sanchez is a staff writer and editor at the Brennan Center for Justice.

Suggested Citation: Gabriella Sanchez, Montana Supreme Court Expands Abortion Access, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 19, 2023), https://statecourtreport.org/our-work/analysis-opinion/montana-supreme-court-expands-abortion-access.