Montana Supreme Court Preliminarily Enjoins Three Laws Concerning Abortion

In the wake of the return of the abortion rights issue to the states, many states have experienced litigation challenging state law impediments to those seeking or providing abortion services.  The State of Montana is no exception. In Planned Parenthood of Montana v. State, the state supreme court upheld a district court decision which granted a preliminary injunction preventing three state statutes from going into effect.

The three Montana laws at issue were H.B. 136, H.B. 171 and H.B. 140. H.B. 136 banned abortions “at twenty weeks from the patient’s last menstrual period.”[1] H.B. 171 eliminated telehealth medication abortion services and required new credentialing, informed consent, and reporting requirements.[2] H.B. 140 mandated that patients have the chance to view an ultrasound and listen to the fetal heartbeat before obtaining an abortion.[3] These statutory provisions carried criminal penalties and provided civil remedies.

Planned Parenthood of Montana sued to enjoin the enforcement of all three statutes. The district court granted preliminary injunctive relief. Under Montana law, the supreme court reviews the grant of temporary injunctive relief under a manifest abuse of discretion standard. Unless a district court acts “arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice”, the supreme court will not find an abuse of discretion.[4]

In assessing the grant of preliminary injunctive relief by the district court, the Montana Supreme Court focused on two of five possible grounds available for preliminary injunctive relief:

(1) when it appears the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; [or]

(2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant[.][5]

Under subsection one, the litigant is required to show three things: (1) they have a legitimate cause of action and are likely to succeed on the merits; and (2) an injunction is the appropriate remedy.[6] To show that they have a legitimate cause of action and are likely to succeed on the merits, the party must present a prima facie showing that they are entitled to relief, but they need not prove they will prevail at trial.[7] To show that an injunction is the appropriate remedy, the party must show that injunctive relief will prevent “some degree of harm or injury”; a lesser degree of injury than “great and irreparable injury” will satisfy the standard for granting preliminary injunctive relief.[8] In making its decision, the court should be guided by the fact that purpose of a preliminary injunction is to maintain the status quo before a final decision is reached.[9]

The district court applied strict scrutiny to the laws in question[10] based upon the Montana Supreme Court’s decision in Armstrong v. State.[11] In Armstrong, the Montana Supreme Court determined that Article II, Section 10 of the Montana Constitution “protects the right to procreative autonomy” through the right to privacy by guaranteeing “each individual the right to make medical judgments affecting his or her bodily integrity and health in partnership with a chosen health care provider free from government interference[.]”[12] Although the state asked the court to overrule Armstrong, the court declined to do so, citing to the procedural posture of the case as an appeal from the grant of preliminary injunctive relief rather than an appeal on the merits of a final judgment.[13] Given that the district court applied the governing precedent of Armstong, the supreme court found no error in the application of strict scrutiny.[14] Thus, for injunctive relief to fail, the State of Montana was required to show that the laws were narrowly tailored to further a compelling state interest.[15] In order to show a compelling state interest, the state had to demonstrate there was a “medically acknowledged, bonafide health risk, clearly and convincingly demonstrated.”[16]

The state argued that under the first ground for preliminary injunctive relief, the petitioner should have to show a “likelihood of success on the merits”—as in federal court—and not simply a prima facie case. But the supreme court concluded that the requirement that a party present only a prima facie case is in line with the purpose of preliminary injunctive relief to preserve the status quo and not to require a showing of “ultimate success on final judgment.”[17] The court also found support in the plain language of the preliminary injunction statute for the requirement the party only present a prima facie case.[18] The statute states that a preliminary injunction can issue “when it appears that the applicant is entitled to the relief demanded,” which implies no requirement to show a likelihood of ultimate success on the merits.[19] The court found that the State of Montana did not offer any support for its position that a federal standard requiring a showing on the ultimate likelihood of success on the merits should be applied.[20] The court declined to require that parties engage in a mini-trial on the constitutionality of the questioned statutes in order to grant temporary relief. It also concluded that the likelihood of success on the merits standard would not require more than a prima facie case.[21]

With the issues of applying strict scrutiny and the standard of proof for preliminary injunctive relief behind it, the court ruled that the district court had not abused its discretion in granting preliminary injunctive relief regarding H.B. 136. Strict scrutiny required that the state show the law was narrowly tailored to achieve a compelling interest. The state argued that its interest was in avoiding fetal pain, and it presented evidence that a fetus can feel pain when below 20 weeks’ gestation. But the medical providers presented rebuttal evidence that it was impossible for a fetus to feel pain prior to 24 weeks gestation, and the court concluded that the state had not offered enough evidence to show the law was narrowly tailored to support its interest.

The state argued that H.B. 171 was a reasonable regulation of abortion services,[22] but the district court, applying strict scrutiny, found the statute failed under Armstrong’s interpretation of the state constitution. The district court found that the providers had presented a prima facie case that no medical service provider could be credentialed in all the areas required by the statute.[23] In addition, an informed consent requirement with a mandatory 24-hour delay prohibited exercise of a constitutional right for 24 hours, and given the low risk of medication based abortions, such a restriction was not narrowly tailored to support a compelling state interest.[24]

Furthermore, the court said the district court did not abuse its discretion in issuing a preliminary injunction regarding H.B. 140. The informed consent provisions requiring the opportunity to watch an ultrasound and listen to a fetal heartbeat stigmatized women seeking abortions, served no medical purpose, and sought to discourage abortions.[25] Thus, it was not narrowly tailored to support a compelling state interest.[26]

Finally, in addressing the second ground for a preliminary injunction, the Montana Supreme Court found the district court did not abuse its discretion in finding that irreparable injury to the patients and providers would occur without it.[27] The district court found that irreparable harm results when a constitutional right is lost.[28] The challenged laws impeded the right to secure a pre-viability abortion and were, therefore, incompatible with the Montana Constitution.[29]

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