Montana abortion clinics won’t be subject to new licensing requirements — which their advocates said could shut them down — at least for now.

Last week, a Lewis and Clark County District Court judge said the licensing requirements imposed by the Montana Legislature’s House Bill 937 of 2023 could violate patients’ equal protection rights.

That’s because the rules treat abortion providers differently than health care providers who prescribe the same drugs and perform the same procedures — but for non-abortion purposes, such as miscarriages, Judge Christopher Abbott wrote.

“In this case, the harm caused by causing constitutional harm to providers and their patients, who face likely disparate treatment, regulatory burdens not shared by other similar patients and providers, and the strong potential for imminent closure (at least until regulatory compliance is achieved…) outweigh the government’s interest in effecting a change to the status quo in the form of HB 937,” the order said.

As such, Abbott issued an order that continues to ban the law and the health department rules that implement it for now. A temporary restraining order blocking the law was set to expire on November 19.

The judge said the providers appear to have shown the law violates their rights, but the order is temporary until the trial is fully conducted.

As passed in 2023, the law would require abortion clinics to be licensed. Abortion providers are currently regulated by their licensing boards and the federal government.

However, many private medical practices do not need to be licensed under the state health department, the order said.

In September 2023, the judge said the law could not take effect in part because the rules governing the new license requirement were not yet in place.

But the order said it was too early to evaluate the licensure requirement, and the Department of Public Health and Human Services still needed the opportunity to write the rules to carry out the legislature’s will.

However, the parties agreed that once these rules were drafted, they too could be challenged.

In September, the health department released final licensing rules, which include paying a $450 annual license fee, requiring license applicants to be of “reputable and responsible character,” that providers keep staff background checks on file for inspection and construction requirements.

The order temporarily barring the law from taking effect until the rules are drafted expired on November 19. The judge heard arguments Nov. 8 on whether the court should strike down the new law now that related regulations are in place. .

In their arguments against the law and related rules, All Families Healthcare, Blue Mountain Clinic and provider Helen Weems argued that the new requirements are “onerous and unnecessary” and would make it more difficult for clinics to stay open and for patients to access care for abortion.

The Center for Reproductive Rights, the ACLU of Montana and Dechert LLP advocated for the providers.

The judge agreed with the providers, citing long-standing Montana law protecting abortion, including Armstrong v. State, as well as the new voter-approved measure directly protecting abortion in the Montana Constitution, Constitutional Initiative 128.

“Regardless of one’s views, the law in Montana is well settled. Women have a constitutional right to access previable abortions from a qualified health care provider of their choice,” the order states. “…Furthermore, voters recently affirmed Armstrong’s primary holding when they approved adding an express right to abortion access to the Montana Constitution.”

Providers may be able to show that the rules violate their right to equal protection and that they will suffer irreparable harm without an order preventing the law from taking effect pending trial, the order said.

So a preliminary injunction or order maintaining the status quo is appropriate, the judge said.

“The status quo is what has been the case for decades: Although abortion providers are subject to applicable federal regulations and regulation by their licensing board, they are generally not considered health care facilities subject to a licensing requirement or any DPHHS regulation. HB 937 represents a departure from that status quo,” the order said.

But abortion is safe — safer than giving birth to a child, the order says. Major complications are said to occur in less than a fraction of 1% and complications of all types occur in only 2% of abortions.

“Abortion has similar or lower risk than vasectomy, an outpatient procedure typically performed in a doctor’s office,” the order said.

He said the complication risks of the abortion drugs mifepristone and misoprostol are similar to the risks of aspirin or antibiotics or Viagara. “Specifically,” he said, the risks “are no greater when used to induce an abortion than when used to manage a miscarriage.”

He said the same for abortion procedures, “comparable to other gynecological procedures routinely performed in the office in terms of ‘risk, invasiveness, duration and instrumentation.’

Additionally, at this stage of the case, the state has not rebutted this information, the order states.

The order also discussed abortion providers. He said the state’s witness agreed that many doctors and other providers are not required to have facility licenses, and many private medical practices, including multi-physician clinics, are not required to be licensed when they are not affiliated with a larger institution.

“Wooten (Tara Wooten of DPHHS, the only witness called at the recent hearing) gave as examples of ambulatory surgery centers facilities that perform orthopedic surgeries such as knee and hip replacements, etc. Obstetricians/gynecologists and other physicians who perform in-office procedures are not required to license their offices as ambulatory surgery centers,” the order says.

If the state proposed to license all private health care providers who offer similar procedures and prescribe similar drugs, “this would present a more difficult equal protection case,” the order said. “But the state didn’t do that.”

“If the purpose is to ensure that women are treated in safe health facilities equipped to handle any complications that may arise, that purpose applies equally to practices or private doctors and other health professionals where they provide the same procedures for management of miscarriage. but whose offices are not subject to any of these new regulations,” the order said. “Because the requirements of House Bill 937 and its implementing regulations are insufficiently broad, they are not strictly tailored.”

And the judge said the state had not offered “at this stage” a plausible justification for regulating two classes of providers differently.

In statements Friday, the plaintiffs praised the order, which bars the state, the health department and its director and employees from enforcing any provisions of HB 937 or its regulations until further notice from the court.

“It’s absurd that this is even a question. Abortion providers are already regulated by the state. Abortion is incredibly safe medical care,” said Plaintiff Weems, a nurse at All Families Healthcare. “Had these new rules been allowed to go into effect, I would have been forced to close All Families, leaving the Flathead Valley – and my patients across the state – without a provider.

“While I’m grateful for the court’s decision, this is the third time I’ve had to go to court to preserve access for my patients — and I should be spending that time on actual patient care.”

Keila Szpaller is deputy editor of the Daily Montanan, a nonprofit newsroom.